Priest v West

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0140

JEAN MARIE PRIEST	Appellant
	v
IAIN WEST (In his capacity as Deputy State Coroner of Victoria) and DEREK PERCY	First Respondent
	Second Respondent

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JUDGES	MAXWELL P, HARPER and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 June 2012
DATE OF JUDGMENT	20 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 327
JUDGMENT APPEALED FROM	Jean Marie Priest v Deputy State Coroner and Derek Percy [2010] VSC 449

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ADMINISTRATIVE LAW – Coroner – inquest into the death of a child – Reportable death – Obligation to find, if possible, the cause of death and circumstances in which the death occurred – Coroner excluded statements about the circumstances of the deaths of five other children – Propensity evidence – Whether statements were relevant considerations that the Coroner was obliged to take into account – Pfennig v The Queen (1995) 182 CLR 461 – Section 67(1)(b) and s 67(1)(c) of the Coroners Act 2008 (Vic).

CORONER – Whether witness should be compelled to give evidence under s 57(4) of the Coroners Act 2008 (Vic) – Reliability of the evidence relevant to whether the ‘interests of justice’ required that witness give evidence – Inquisitorial character of coronial inquest – Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 – Distinction between ‘salient facts’ and mere ‘pieces of evidence’ – Macedon Ranges Shire Council v RomseyHotel Pty Ltd (2008) 19 VR 422.

STATUTORY INTERPRETATION – Section 57(3) of the Coroners Court Act 2008 (Vic) – Whether Coroner obliged to inform witness that he would be given a certificate of immunity if he willingly gave evidence – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Gillespie-Jones with Ms E McKinnon	Magazis (Theo) & Associates
No appearance for the First Respondent
For the Second Respondent	Mr C G Fairfield	Frank Randle

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MAXWELL P
HARPER JA:

We have had the considerable advantage of reading in draft the judgment of Tate JA. We gratefully adopt her Honour’s comprehensive account of the factual and legal background and exposition of the grounds of appeal. We respectfully agree that both of the rulings of the Coroner should be set aside and, subject to what follows, we do so for the reasons which her Honour gives.

The nature of the Coroner’s function

The issues raised by this appeal focus attention on the Coroner’s function under the Coroners Act 2008 (Vic) (the ‘Act’) and on the scope of the inquiries which the Coroner must undertake. The Preamble to the Act defines the role of the coronial system as (relevantly) ‘the independent investigation of deaths … for the purpose of finding the causes of those deaths’.

As Tate JA points out,[1] the Act declares — unequivocally — that the Coroner’s investigative function is inquisitorial in nature.[2] The Coroner must therefore be an active investigator of the death in question. There being no parties to an inquest (although interested parties may be given leave to appear),[3] the responsibility is the Coroner’s alone.
[1]See below [167]–[172].
[2]Section 89(4).
[3]Section 56.

Moreover, the introductory words to s 67 are emphatic: when investigating a death, the Coroner ‘must find, if possible’ the identity of the deceased, the cause of death, and the circumstances in which the death occurred.[4] The words ‘if possible’ in s 67 make it obligatory, in our view, for the Coroner investigating a death to pursue all reasonable lines of inquiry.
[4]Emphasis added.

Under s 62(1) of the Act, the Coroner holding an inquest is expressly not bound by the rules of evidence. The subsection provides, moreover, that the Coroner ‘may be informed … in any manner that the Coroner reasonably thinks fit’. As Tate JA notes,[5] the trial judge took the view that these and related provisions gave coroners ‘considerable latitude as to the manner in which an inquest is conducted’.[6] In his Honour’s view, this statutory flexibility and ‘wide discretion’ told against the argument that the Coroner in the present case was bound to have regard to the material in the disputed statements.[7]
[5]See below [96].
[6]Priest v Deputy State Coroner [2010] VSC 449, [50] (‘Reasons’).
[7]Ibid [50]–[52].

With respect, we think these provisions point to the opposite conclusion. While undoubtedly giving the Coroner (appropriately) broad scope to shape and direct an investigation, these provisions emphasise Parliament’s intention that the Coroner should not be constrained in carrying it out. It is precisely because the Coroner must do everything possible to determine the cause and circumstances of the death that Parliament has removed all inhibitions on the collection and consideration of material which may assist in that task. Parliament has, in particular, exempted the Coroner’s processes from the rules which limit the admissibility of evidence in court proceedings. Far from justifying a narrow view of the scope of an investigation, these provisions oblige the Coroner to take an expansive or inclusive approach, in our view.

Nothing we have said is intended to suggest that the Coroner can, or should, conduct an investigation without paying proper regard to questions of cost, delay and feasibility. As counsel for Mr Percy pointed out, s 8(b) of the Act requires the Coroner to have regard ‘as far as possible in the circumstances’ to the risk that ‘unnecessarily lengthy or protracted’ investigations may exacerbate the distress of those affected by the death.

No such consideration bore upon either of the rulings under consideration. As regards the first ruling, the Coroner’s decision to exclude the disputed statements was directly contrary to the wishes of Mrs Priest and may be assumed to have heightened, rather than lessened, her distress. Nor was there any suggestion that the admission of the statements would create practical difficulties.

The implications of this analysis for the present appeal are as follows. If, in the course of the investigation of a death it appears that a person may have caused the death, then the Coroner must undertake such investigations as may lead to the identification of that person. Otherwise the required investigation into the cause of the death and the circumstances in which it occurred will be incomplete; and the obligation to find, if possible, that cause and those circumstances will not have been discharged.

In two recent decisions, the High Court has considered the implications of proceedings before the Refugee Review Tribunal being characterised as ‘inquisitorial’. In Minister for Immigration and Citizenship v SZIAI,[8] the plurality judgment said:

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.[9]

It was not necessary in that case to explore further those questions of principle, nor in the subsequent case — Minister for Immigration v SZGUR[10] — where this passage was cited.

[8](2009) 83 ALJR 1123 (‘SZIAI’).

[9]Ibid 1129 [25].

[10](2011) 241 CLR 594, 603 [23].

The Coroner’s Court is not, of course, a review tribunal with a duty to review. It is an inquisitorial court, with a duty to investigate. What the High Court said in SZIAI nevertheless illuminates the nature of the present challenge. The appellant’s contention that the Coroner failed to take into account relevant considerations (being the disputed statements, and the latest evidence about the state of Mr Percy’s memory) might have been expressed as a contention that the Coroner ‘failed to make an obvious inquiry about a critical fact’.[11] It could properly have been argued, in our view, that the failure to consider these matters constituted a constructive failure by the Coroner to exercise the investigative jurisdiction conferred on him. The appeal not having been conducted on that basis, however, we need say no more on this aspect.
[11]See above [10].

The relevance of propensity evidence

As Tate JA points out, on the second day of the inquest into the death of Linda Stilwell, the Coroner made a finding which he expressed in the following terms:

I am satisfied on the balance of probabilities that Derek Percy was in the vicinity of St Kilda and in the vicinity of Beaconsfield Parade on Saturday 10 August 1968, the day Linda Stilwell disappeared.

The Coroner subsequently stated[12] that the evidence then available to him would support a finding that ‘Linda Stilwell was abducted and is deceased, having met her death by foul play’.

[12]In the second ruling under challenge in this proceeding.

For the reasons we have given, the identity of the person who abducted Linda Stilwell is necessarily an issue which the Coroner must investigate. There were doubtless many other people in St Kilda on the day of the disappearance. But, of all those who, by physical proximity, might have abducted the victim, Mr Percy is the one upon whom suspicion naturally falls. That would be so were his known record — as the abductor and killer of another young girl, Yvonne Tuohy — the only factor (apart from his physical proximity) connecting him with Linda Stilwell. Yvonne Tuohy died at Mr Percy’s hands on 20 July 1969, 11 months after Linda Stilwell was last seen. So much is uncontroversial.

In our view, the link provided by the death of Yvonne Tuohy meant that the Coroner was obliged to receive the statements for the purposes of determining whether Mr Percy was the killer of Linda Stilwell. This was so irrespective of whether the statements satisfied any of the criteria for the admissibility of evidence in a criminal trial. It was sufficient to engage the Coroner’s strong investigative obligation that Mr Percy had been in the vicinity when Linda Stilwell disappeared and that he had subsequently abducted and murdered another young girl.

The Coroner was therefore bound to ascertain ‘if possible’ who was responsible for the abduction and death of Linda Stilwell. Evidence that Mr Percy had, at the relevant time, a propensity to commit a grave offence of that kind was clearly relevant to that line of inquiry since — taken together with the evidence of his physical proximity on the day — that evidence increased the likelihood that Mr Percy was indeed the abductor and murderer.[13]
[13]Harriman v The Queen (1981) 167 CLR 590, 600–1 (‘Harriman’).

In Doomadgee v Clements,[14] a decision relied on by Mrs Priest before the trial judge, the Supreme Court of Queensland held that evidence showing the propensity for violence of the person who had caused the death under investigation by the Coroner was logically probative of a fact in issue. In reaching that conclusion, Muir J cited the following statement of Dawson J in Harriman:

When a person is charged with a criminal offence, evidence is ordinarily inadmissible that he has on other occasions been guilty of behaviour indicating a criminal disposition. This is not because the evidence is irrelevant. On the contrary, it is excluded because a jury is likely to regard it as proving too much …[15]

The analogy with [16]

[14](2006) 2 Qd R 352 (‘Doomadgee’).

[15]Doomadgee (2006) 2 Qd R 352, 362 [40] citing Harriman (1981) 167 CLR 590, 597.

[16](1995) 182 CLR 461 (‘Pfennig’).

Before the Coroner, counsel for Mrs Priest sought unsuccessfully to establish the relevance of the disputed statements by drawing an analogy with the decision of the High Court in Pfennig. Although no question of admissibility arises, we think that the decision in Pfennig is of assistance in demonstrating the relevance of the statements to the Coroner’s investigation.

Both the circumstances in Pfennig and the relevant parts of the majority judgment are set out in Tate JA’s reasons. We have, however, reached a different conclusion from her Honour on this aspect of the case, and it is therefore necessary to set out our reasons briefly.

The question before the High Court in Pfennig concerned the admissibility (in the trial of Mr Pfennig (‘P’) for the murder of a boy (‘M’)) of evidence showing that he had subsequently abducted a boy for sexual purposes. There, as here, the question was one of identity.

In the view of the High Court majority (Mason CJ, Deane and Dawson JJ), the factors which gave the evidence ‘a high level or degree of cogency’[17] (as part of a circumstantial case intended to prove that P was the abductor and murderer of M) were as follows:
[17]Ibid 488.

1.P was in the area where M disappeared, around the time of the disappearance, and had met M earlier that day. This was ‘convincing evidence of opportunity’.[18]
2.Any cause of death other than abduction and murder could be excluded.[19]
3.P’s subsequent conviction for the abduction and rape of a young boy (‘H’) showed that he was ‘of the requisite disposition’,[20] even though that offending was ‘equivocal’ as to his propensity to murder.[21]
4.P acknowledged to his wife at the time of that offence that he had been having thoughts of doing such a thing on and off for 12 months.[22] The commission of that offence showed that P was prepared to ‘carry these thoughts into effect when an opportunity arose’.[23]
5.The modus operandi used by P on the subsequent occasion — the inveigling of a child into P’s van — had a parallel with evidence showing that, on the day M disappeared, P was driving his van and had invited two other children to travel in the van with him.[24]
6.Although there was no direct evidence of how M had disappeared, the circumstantial evidence led to an inference that he had been abducted for sexual purposes, which meant that a van of the kind which P drove ‘was an ideal vehicle for the execution of such an enterprise’. That meant in turn that there was ‘a similarity and unity’ between the two incidents of abduction.[25]
7.It was very unlikely that there were two child molesters in the relevant area at the relevant time.[26]

[18]Ibid 489.

[19]Ibid 486.

[20]Ibid 487.

[21]Ibid 490.

[22]Ibid 470.

[23]Ibid 487.

[24]Ibid 467, 489.

[25]Ibid 488.

[26]Ibid 474. See also H M L v The Queen (2008) 235 CLR 334, 356 [18].

In their joint judgment in Pfennig, Mason CJ, Deane and Dawson JJ said that the evidence given by H of his abduction by P

demonstrates not only propensity and criminality but also established [P’s] modus operandi in abducting a young boy for sexual purposes and his acknowledgment that he was thinking about indulging his propensity by recourse to the same modus operandi.[27]

[27]Ibid 489.

As Pfennig makes clear, proof of propensity does not depend on, and is not limited to, proof of similarities in conduct by means of similar fact evidence.[28] The fact that P had been subsequently convicted of an offence involving abduction of a boy for sexual purposes was, by itself, sufficient to show a propensity which was relevant to the case against P for the earlier abduction and murder of M. The fact that there was a similar modus operandi gave the evidence of the subsequent offence even greater cogency.[29]
[28]Ibid 464–5; see also Harriman (1981) 167 CLR 590, 597.
[29]Pfennig (1995) 182 CLR 461, 489.

In the present case, as Tate JA points out, there is no basis for a ‘modus operandi’ connection between the murder of Yvonne Tuohy and the disappearance of Linda Stilwell. Nothing is known about the circumstances in which she disappeared or about how she was murdered. But, consistently with Pfennig, evidence showing that Mr Percy had ‘the requisite disposition’ — and was prepared to act on it — at a time proximate to the disappearance of Linda Stilwell remained highly relevant to the Coroner’s investigation.

There were a number of factors which made this so. As will appear, many of these factors coincide with factors viewed as significant in Pfennig. We would list them as follows:

1.Mr Percy was in the immediate vicinity of the place where Linda Stilwell was last seen, on the day of her disappearance. This was evidence of opportunity.
2.The cause of death (according to the Coroner’s provisional conclusion) was abduction and ‘foul play’.
3.Eleven months after the disappearance of Linda Stilwell, Mr Percy abducted and killed Yvonne Tuohy.
4.According to the statement of Professor Ogloff, it was ‘exceedingly rare for one to have such a serious sadistic sexual paraphilia, as is the case with Mr Percy’.
5.Because of that condition, Professor Ogloff said, Mr Percy had — at and before the date of Linda Stilwell’s disappearance — the propensity to commit abduction and murder.
6.According to Professor Ogloff, it was very unlikely that the killing of Yvonne Tuohy was the first offence of that kind committed by Mr Percy.
7.Because of Mr Percy’s condition, it was more probable that he would take advantage of an opportunity which presented itself than it was that anyone else in the vicinity not so afflicted would do so.
8.It was highly unlikely that any other child molester — certainly one with such a rare and dangerous condition — was in the vicinity of Beaconsfield Parade, St Kilda, on that day.

The Coroner’s inquest is not, of course, concerned with whether Mr Percy could be prosecuted for murder. As we have said, the strictures which attach to the admissibility of propensity evidence when criminal responsibility is sought to be attached have no application. Indeed, the Coroner is prohibited from making any statement that ‘a person is, or may be, guilty of an offence’.[30]
[30]Coroners Act 2008 (Vic) s 69(1).

For the reasons we have given, in addition to those given by Tate JA, the evidence which bore on Mr Percy’s propensity was highly relevant to the question of identity. No course was reasonably open to the Coroner, in our view, but to take the disputed statements into account. The Coroner’s obligation to carry out an inquisitorial investigation required nothing less.

The scope of the investigation

It will be apparent from what we have said that the Coroner was obliged to consider Professor Ogloff’s statement, together with the evidence bearing upon Mr Percy’s abduction and murder of Yvonne Tuohy. But, as Professor Ogloff’s statement itself made clear, the other statements also bore on the question of his propensity as at the date of the disappearance of Linda Stilwell. Insofar as the statements relate to the death of Simon Brook, and to the finding of Mr Percy’s handwritten drawings and writings about the abduction, sexual assault, mutilation and killing of child victims, they strengthen the conclusions drawn by Professor Ogloff.

Simon Brook was abducted and murdered on 18 May 1968, less than three months before the disappearance of Linda Stilwell. Any affirmative conclusion which the Coroner might be able to reach regarding Mr Percy’s involvement in the death of Simon Brook would, once again, bear directly on Mr Percy’s preparedness to act out his sadistic sexual fantasies at a time proximate to the disappearance of Linda Stilwell and — hence — on the likelihood of his having been responsible for her death. While the statutory responsibility for a coronial investigation into a New South Wales death naturally rests with that State’s Coroner, that circumstance could not in our view prevent the Victorian Coroner from exploring the circumstances of Simon Brook’s death, to the extent that it was necessary to do so in the discharge of the investigative duty imposed on him by the Victorian Act.

The statements relating to the death of Simon Brook, and to Mr Percy’s presence in the vicinity at the time, are therefore relevant. In addition, it would be necessary for this purpose to consider the statements which address similarities between the injuries inflicted on Yvonne Tuohy (for which Mr Percy is known to have been responsible) and those inflicted on Simon Brook (in respect of which he is a suspect). That would be an orthodox application of similar fact evidence for the purpose of determining whether Mr Percy was also the murderer of Simon Brook. As we have sought to explain, that determination would not be an end in itself but would be a means of furthering the investigation into the death of Linda Stilwell.

The same analysis applies to the statements relating to the death of Alan Redston. It will be a matter for the Coroner to consider, in the light of what is revealed by the investigation of Simon Brook’s death, whether and to what extent a like investigation of Alan Redston’s death is warranted. The receipt of the disputed statements is essential to that decision‑making process.

Conclusion

For these reasons, the statements of David Ranson, Jenny Mouzos, Debra Bennett, Adam Barwick (with the exception of his evidence about Gillette razor blades), Adrian Paterson and James Ogloff ought to have been received

by the Coroner.

We do not think that the evidence about the razor blades advances the investigation which the Coroner must undertake. It is important that that investigation not be diverted into the exploration of matters which logic and experience clearly indicate are unlikely to assist.

We agree with the conclusion to which Tate JA has come regarding the second ruling, and with her Honour’s reasons for that conclusion. We would simply add that the question of whether Mr Percy is to be required to give evidence, in accordance with s 57(4) of the Act, will need to be considered in the light of what we have said about the Coroner’s investigative obligation.

TATE JA:

Introduction

The Coroner, Mr Iain West,[31] during the course of an inquest into the death of a seven year-old girl, Linda Stilwell, excluded statements about the circumstances of the deaths of five other children (‘the statements’). He did so on the basis that the statements were irrelevant. Mr Derek Percy (‘Percy’) had been found not guilty of the murder of one of those five children on the ground of insanity. He was a suspect in the unsolved murders of the other four children. He was seen in the vicinity of the location from which Linda Stilwell disappeared. This appeal raises the question: Was the Coroner’s decision to exclude the statements (‘the first ruling’) correct at law?
[31]Mr West is the Deputy State Coroner of Victoria.

The Coroner also decided not to compel Percy to give evidence, in part on the ground that he would not be confident of the reliability of the evidence given (‘the second ruling’). The Coroner did not invite Percy to give evidence willingly; nor did he inform Percy that he would be given a certificate of immunity were he to

give evidence. This appeal raises the further question: Was the second ruling correct at law?

The mother of Linda Stilwell, Mrs Jean Marie Priest, applied to the trial division of the Supreme Court for judicial review of the first and second rulings,[32] seeking an order in the nature of certiorari to quash the rulings and mandamus to compel the Coroner to make his findings according to law. The challenge to the second ruling also included the complaint that the Coroner committed an error of law when he failed to inform Percy that he could give evidence voluntarily and failed to inform Percy of the availability of a certificate of immunity. The inquest was adjourned for the application for judicial review to be determined.
[32]Under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.

The trial judge dismissed the application, and refused the relief sought.[33]
[33]Jean Marie Priest v Deputy State Coroner [2010] VSC 449 (‘Reasons’). The two Rulings are attached as a Schedule to the Reasons, Attachment 1 and 2 respectively.

Mrs Priest appeals to this Court on the ground that the trial judge erred in holding that the statements were not relevant considerations that the Coroner was obliged to take into account. She also claims that the trial judge erred in holding that the Coroner did not need to take into account the most recent evidence of Percy’s capacity to give reliable evidence. She further claims that the trial judge fell into error in holding that it was not mandatory, under s 57(3) of the Coroners Act 2008 (Vic) (‘the Act’), for the Coroner to inform Percy that he could give evidence willingly and that, if he did give evidence, he would be given a certificate of immunity.

In my opinion, the trial judge erred in finding that the Coroner was not obliged to take into account the statements. The first ruling was incorrect at law. I consider that the trial judge was wrong to conclude that the Coroner could ignore the most recent evidence that bore on the question of the reliability of Percy’s memory when he made the second ruling. I also consider that the Coroner was obliged, under s 57(3) of the Act, to inform Percy that he could give evidence willingly and that, if he did so, he would be given a certificate prohibiting direct or derivative use of any evidence he gave.

The Inquest

Linda Stilwell disappeared on 10 August 1968. She was last seen in the vicinity of Luna Park, near Beaconsfield Parade, St Kilda. Her body has never been found.

On 8 December 2009, the Coroner commenced an inquest into the death of Linda Stilwell. He was obliged to investigate the death,[34] as the death was a ‘reportable death’,[35] being a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury[36] and, relevantly, having occurred in Victoria.[37] He was obliged to hold an inquest, as the death was a suspected homicide.[38] The Coroner was under an obligation to find, if possible, the cause of death, and the circumstances of death, under s 67(1)(b) and s 67(1)(c) of the Act, respectively. If he believed that an indictable offence may have been committed in connection with the death, the principal registrar would become obliged to notify the Director of Public Prosecutions.[39]
[34]Under s 15(b) of the Act.
[35]Within the meaning of s 4(1).
[36]Section 4(2)(a).
[37]Section 4(1)(b).
[38]Section 52(2)(a).
[39]Section 49(1).

The Coroner was aware that Percy had been found not guilty by reason of insanity of the murder of a 12 year-old girl, Yvonne Tuohy, who died at Ski Beach, Warneet, Victoria on 20 July 1969. Percy is currently detained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).[40]
[40]Reasons, [29].

The Coroner made a finding that Percy was in the vicinity of St Kilda, and more particularly, in the vicinity of Beaconsfield Parade, on the day of Linda Stilwell’s disappearance. That finding was made on the evidence of Ms Jamieson and Mr Anderson.

Ms Jamieson gave evidence that she was in the surrounding area of Luna Park on 10 August 1968 when she saw a little girl whom she later recognised as Linda Stilwell rolling down a green slope between the Upper and Lower Esplanade and a man sitting on a nearby seat. She described the man to the police at the time as having ‘deep olive skin, very dark and about 30 years of age … he was thin with sharp features’. She gave evidence at the inquest that she later recognised this man as Percy from a picture in the Herald newspaper that was published in relation to the killing of Yvonne Tuohy.

Mr Anderson was a childhood friend of Percy’s who had joined Victoria Police in December 1968. At the request of the homicide squad, he conducted an interview with Percy in July 1969 after he was arrested for the murder of Yvonne Tuohy. Percy admitted being present in St Kilda on the day that Linda Stilwell disappeared. Mr Anderson also gave evidence that Percy made a number of other admissions with respect to his alleged involvement in the abduction, mutilation and deaths of other young children.

The Coroner stated that:[41]

The evidence to date would support a finding that Linda Stilwell was abducted and is deceased, having met her death by foul play. The nature of the alleged offence is murder.
[41]This observation was made in the context of the second ruling.

The First Ruling

(1) The Statements

Counsel assisting the Coroner applied for the statements, which had been included in the Inquest Brief, to be excluded on the ground that they lacked

relevance to the Inquest. Mrs Priest opposed the application.[42] The statements related to the disappearance and deaths of five other children over the period of 1965 to 1969.[43] These included two 15-year old girls, Christine Sharrock and Marianne Schmidt (Wanda Beach, Sydney, NSW 11 January 1965); a six-year old boy, Alan Redston (Curtin, ACT 27 September 1966); a three-year old boy, Simon Brook (Glebe, NSW 18 May 1968) and the death of Yvonne Tuohy in 1969. Percy had been a suspect in the unsolved murders of each of the first four children, and, as mentioned above, found not guilty by reason of insanity of the murder of the fifth child.

[42]Initially 11 witness statements were in issue, all of which Mrs Priest argued were relevant. Before the trial judge, only eight witness statements were in issue: Reasons, [26], [32].

[43]Reasons, [28].

Mrs Priest argued before the Coroner that evidence about the abduction and death of the five other children was relevant because it constituted similar fact evidence which showed that Percy had a propensity to abduct and kill young children of both sexes.[44] She submitted that, as the Coroner had found that Percy was present at the time Linda Stilwell was abducted, the similar fact evidence could inform a finding that he was responsible for Linda Stilwell’s abduction and had caused her death.[45]
[44]Reasons, [29].
[45]Ibid.

The statements consisted of eight witness statements: (i) Dr David Leo Ranson; (ii) Dr Jenny Dimitra Mouzos; (iii) Officer-in-Charge Debra Jane Bennett; (iv) Detective Sergeant Adam Barwick; (v) Detective Sergeant Adrian Paterson; (vi) William McDonagh; (vii) Roger Michael Adair; and (viii) Professor James Robert Ogloff.

It is important to examine the contents of the statements to identify their strengths and limitations.
(i) Dr David Ranson
Dr Ranson, the Deputy Director of the Victorian Institute of Forensic Medicine and a medical practitioner practising as a specialist in forensic medicine and pathology, examined the post-mortem reports and photographs with respect to the five other children. He reviewed the available pathological documentary material and addressed issues of comparison and similarities between the cases with respect to the cause of death, the injuries inflicted and other inferences that could be drawn on a pathological basis. He considered in detail any bruises, lacerations, abrasions, wounds and degree of bleeding on the bodies of each of the five children.

He concluded that the injury patterns to Christine Sharrock and Marianne Schmidt were similar ‘with both having genital bruise/abrasion, incised wounds to the neck and stab wounds to the chest’. Both girls were stabbed repeatedly in the neck and chest. Dr Ranson considered that ‘it is not possible to say whether this [the genital bruising] was the result of sexual penetration, although it is certainly possible that might be an explanation for this injury’. Their bodies had been located at the same place and he presumed their deaths had been caused by the same individual. The body of Christine Sharrock displayed wounds that were probably inflicted post-mortem. The incised wounds at the front of the neck of Marianne Schmidt:

were also present over the front of the neck of Christine Sharrock, and there is a possibility these wounds were also inflicted post-mortem. This may show a degree of similarity of operation on the part of the killer.

The body of Alan Redston was found wrapped in carpet and plastic, held in place by a green and yellow necktie. His hands and feet were bound behind his body with rope and a piece of rope was looped around his neck. There was no genital injury. Dr Ranson concluded that ‘the injuries to this individual were … significantly different [from the injuries to Christine Sharrock and Marianne Schmidt] there being … relatively minor skin injuries, no penetrating stab wounds to the body and no particular features of injury focused on the genitalia’.

With respect to Simon Brook, the 3-year old boy, the pathology showed that his throat had been cut, his penis was severed and his scrotum cut open, the latter wounds apparently being inflicted post-mortem. A blade wrapper and a razor blade were found near the body. Two wads of newspaper with pieces of leaf mould were found in the boy’s mouth. The cause of death was asphyxia from suffocation.

Dr Ranson compared the death of Simon Brook with that of the other three children and concluded, while there were some similarities, there were also significant differences in the injuries presented. In particular, he considered that the injuries to Simon Brook had features that distinguished it from those of the other three children. He said:

Clearly in the case of Simon Brook, as with cases 1 (Christine Mary Sharrock) and 2 (Marianne Schmidt), there were incised injuries to the front of the neck and in case 4 (Simon Brook) this appears to be a post-mortem injury. … it is certainly possible that the neck incised injuries in cases 1 (Christine Mary Sharrock) and 2 (Marianne Schmidt) were also carried out post-mortem. No stabbing or deep penetrating injuries were present in Simon Brook [as were present with Christine Sharrock and Marianne Schmidt] and there were no complex patterns of ligature or tying [as was present with respect to Alan Redston]. Simon Brook has direct incision damage to genitalia and that does not appear to have been a feature in cases 1 (Christine Mary Sharrock), 2 (Marianne Schmidt) or 3 (Alan Redston).

A coronial inquest into the death of Yvonne Tuohy identified the cause of death as asphyxiation and lacerations. Her body showed her hands having been firmly tied behind her back by a cord. A ‘firm mass of cloth-like material was present in the mouth and over this material was cloth, the ends of which were retained by a portion of rope’. Large incisions had been made in the body, including the opening of the body cavity. There was an ‘extremely extensive and deep injury across the front of the neck’. He observed that ‘[i]t seems probable the large incised wounds to the neck and trunk were occasioned post-mortem’.

Overall, Dr Ranson concluded that the death of Alan Redston exhibited a number of major differences from the features of the deaths of the other four children. The other children’s bodies exhibited a number of similarities, but there were also differences. Incisions to the external genitalia were present in the case of Simon Brook and possibly Yvonne Tuohy, both occasioned post-mortem. He concluded:

Apart from Case 3 (Alan Redston), the four other deaths … include incised wounds present over the front of the neck. …
Genital injury seems to be a common feature of these cases apart from Case 3 (Alan Redston). Indeed Case 3 (Alan Redston) shows a number of differences including quite detailed tying and wrapping of the body. Although tying is a feature of some of the other cases, this complicated wrapping process seems to be confined to case 3 (Alan Redston). The two youngest victims were the two boys, with the very youngest having genital injuries of the incised type. The females had bruising associated with their external genitalia and it is possible that an incised component exists in the case of Yvonne Tuohy, the excision being an extension of the injury over the anterior surface of the trunk.
Tying up and binding appears to be a feature of a majority of the cases apart from cases 1 (Christine Mary Sharrock) and 2 (Marianne Schmidt), which was the only scenario in which two people appear to have been killed at approximately the same time.
The last of the deaths in the cases reviewed involves Yvonne Tuohy and this case shows the largest degree of incisions in the body being the only case in which the body cavity is substantially opened ….

(ii) Dr Jenny Mouzos

Dr Mouzos, a criminologist employed as a Senior Research Analyst at the Australian Institute of Criminology, manually reviewed the 536 cases of child homicide that had occurred in all Australian States and Territories between 1 July 1989 and 30 June 2003. Dr Mouzos noted that very few child homicides are committed by a person not known to the victim. She found that there was a total of 20 child victims (14 incidents) of murder that involved any kind of mutilation. She found that over the period of 1 July 1989 and 30 June 2003, there was an average of 1.4 child mutilation murders per year in Australia, an average rate of 0.3 per million children aged 0 to 16 years.
(iii) Debra Bennett
Debra Bennett, the Officer-In-Charge of Victoria Police’s Behavioural Analysis Unit, undertook a review of the police material concerning the murders of the five other children. She expressed the view that the murders of Christine Sharrock and Marianne Schmidt should be categorised as sexually sadistic homicides and ‘were committed by one offender’. She considered that Simon Brook’s case was ‘clearly a “lust murder”’ and that he was in all likelihood killed by the same person as the person who killed Yvonne Tuohy.

With respect to the murder of Yvonne Tuohy, she went on to say:

There are numerous indicators of sexual-sadism in this lust murder. … In my opinion, this crime is classified as lust murder and as such, the offender for this crime is acting from the same motivation as the offender for Simon BROOK’s murder. Behaviour reflects personality and, given the rarity of lust murders, similarities in victimology and other police evidence, it is my opinion there is all likelihood that the offender for Simon BROOK’s murder and the offender for Yvonne TUOHY’s murder is one and the same.

She could not comment on the offender’s likely motivation with respect to the murder of Alan Redston. She concluded that there was insufficient behavioural evidence to link the murders of Christine Sharrock and Marianne Schmidt to the other three murders or that of Alan Redston to the other four children. In summary she stated:

All of these homicides were sadistic. It is possible that sexual homicides of Christine SHARROCK and Marianne SCHMIDT are linked to the lust murders of Simon BROOK and Yvonne TUOHY. It is also possible that due to inexperience and/or immaturity in the Christine SHARROCK and Marianne SCHMIDT murders, or because of interruption or some-other unknown variable that these murders were in fact lust murders. However there is insufficient behavioural evidence to link the Christine SHARROCK and Marianne SCHMIDT murders to any of the other offences. … [N]either am I able to link the murder of Alan REDSTON to any of the other homicides.

(iv) Detective Sergeant Adam Barwick

Detective Sergeant Adam Barwick inspected the original Coroner’s brief from the murder of Simon Brook. The body was found in May 1968 at a construction site at Glebe Point Road. Between the shoes and the feet was a ‘Gillette Super Stainless’ razor blade. The running sheets from the investigation included reference to information received from a Mr Richards, of the Gillette Razor Blade Company. He found that the code on the razor blade was L4 which meant that the blade left the factory not later than the end of January 1967. The wrapper found was one used to wrap blades in packets of three that were sold either on a display card or in a blister pack.

The statement of Adam Barwick also referred to the admissions Percy had made to the police on the basis of which he was charged with Yvonne Tuohy’s murder. The statement also annexed handwritten drawings and writings of Percy’s describing his fantasies about the abduction, mutilation and killing of small children. These were found in Percy’s cabin at H.M.A.S. Cerberus, Percy having joined the navy in November 1967. They were found on 21 July 1969, the same day that Percy showed police where Yvonne Tuohy’s body could be found.[46] Percy admitted that the writings were his and that they accurately described what he did to Yvonne Tuohy before he killed her. The writings were also consistent with distinctive features of the mutilation of Simon Brook. When questioned about the writings, Percy told police he had begun writing the fantasies in that year and the year before and had begun to write fantasies earlier before attempting to indecently assault two children in 1966.
[46]On 21 July 1969 Percy accompanied police to a track off Fisheries Road, Devon Meadows where he indicated to them the body of Yvonne Tuohy and in an interview with the police on 22 July 1969 he admitted that the handwritten materials, which had been discovered by police the day before, were his.

Detective Sergeant Barwick expressed the opinion that Percy murdered Simon Brook:

In my opinion Derek Ernest Percy is responsible for the murder and mutilation of Simon Brook on the 18^th of May 1968. I base this opinion on the following facts:
From 1965 until 1969 Percy had an escalating range of deviant behaviour. … In 1966, Percy was involved in an Indecent Assault upon two children … Percy told Detectives Knight and Delaney that ‘something came over me’. This incident concerned his mother to such a degree that she made him see the local doctor. …
In 1969, Percy abducted, murdered and mutilated Yvonne Tuohy. This is a four year gap from when he first developed his fantasies and began to act them out and a three year gap from when he first committed an assault upon children. With the high level of compulsion Percy had to commit these acts, it is unlikely he would not have offended for this period of time.
When arrested for the murder of Yvonne Tuohy in 1969, a number of handwritten documents were found in Percy’s possession. They detailed his fantasies involving the abduction, murder and mutilation of children. In these writings, Percy specifically refers to both male and female children and of particular note is the following quote, ‘if it is a boy (under 3) the penis is cut off’. Percy told Detectives that the writings, which were found in his cabin, were made by him that year (1969) and the previous year. … Percy also stated in his ‘writings’, regarding the death of a child, ‘the best place is the cartgotid (sic) artery or the windpipe in the neck’. Both Simon Brook and Yvonne Tuohy had material placed in their windpipe and their carotid arteries cut.
When interviewed by Dr Bartholomew in 1969, Percy stated he abducted Yvonne Tuohy after being overcome by a feeling, almost a compulsion to do things to kids. He had thoughts about this before on occasions over four years (since 1965). …
When Percy was spoken to by his former friend, Ronald Anderson, concerning the murder of Simon Brook, Percy said, ‘I was driving Lachlan [Percy’s brother] to work that day in Sydney. We turned off at the railway cutting where he [Simon Brook] was found. I came back home that way.’ Anderson said, ‘Do you remember if you killed him?’ Percy said, ‘I wish I could. I might have. I just don’t remember.’ … When questioned about the Simon Brook murder by Detectives Knight and Delaney, Percy said, ‘I remember the name Simon Brook. There is a Shell training garage at Glebe.’ Later in the interview Detective Knight asked Percy, ‘Did you kill Simon Brook?’ Percy replied, ‘I could have’. … a Shell training garage existed in the vicinity of the crime-scene.
…
As part of the ‘kit’ issued to Percy upon joining the RAN, he was given a safety razor. Further blades were then available from the stores within the bases. Gillette had a purchase contract with the Defence Forces and the blade found at the crime scene is consistent with the blades issued by the RAN.
Detective Sergeant Barwick pointed to the nature of Percy’s profile and the rarity of his condition:
Percy fits the psychological profile provided by Professor Madison, who assessed the murder of Simon Brook. … The normal pattern with this type of crime and offender is that they are likely to repeat but not usually in close proximity to the original crime. The offence will give them some release and then they may turn up anywhere. … An extremely similar murder was repeated (Tuohy) and not in close proximity to the original crime, i.e. Melbourne. Percy was responsible for this crime.
Professor James Ogloff stated that it is exceedingly rare for someone to have fantasies to the degree that Percy has. Percy had the propensity to commit the Brook murder from 1965 or 1966. … There are similarities between the Tuohy offence and the Brook offence and Percy’s writings are consistent with the murder of Simon Brook.

Furthermore, he identified the specific similarities upon which he drew the inference that the offender in the murders of Yvonne Tuohy and Simon Brook were one and the same:

The similarities between the murders of Yvonne Tuohy and Simon Brook are striking. Both children were abducted near the water, both had injuries indicating attempts to strangle them, both had their throats cut, both had material inserted down their throat, both suffered post mortem genital mutilation. The cause of death was asphyxiation. Both bodies were concealed amongst bushes. The number and manner of similarities between the two child murders is so striking that they indicate one perpetrator, with a ‘tendency’ to commit this type of crime, is responsible for both.

These features (‘the similarities of the circumstances of death’) acquire an importance in the discussion below relating to the purpose for which Mrs Priest relied on the statements.
(v) Detective Sergeant Adrian Paterson
Detective Sergeant Adrian Paterson, the officer in charge of the Criminal Identification Squad, with experience in offender identification since 1983, compared, on the one hand, a 1966 image of Percy, with, on the other hand, several Identikit images, one compiled for the Alan Redston murder; one compiled for the Simon Brook murder; and one complied for the murders of Christine Sharrock and Marianne Schmidt. He concluded that the images were significantly similar:

… I am not only of the opinion that the 1966 [the identikit for the Alan Redston murder] and the 1968 [the identikit for the Simon Brook murder] images are similar and a high probability of being one and the same, but the 1965 identikit image [for the Sharrock and Schmidt murders] is also so very similar (if not more so) to the 1966 ‘Year Book’ image [of Derek Percy] and consistently similar to the 1966 and 1968 Identikit Images also.

However, he emphasised the limitations of Identikit images, saying:

What needs to be understood is that in the 1960’s, the only system of Facial Identification (apart from freehand drawing) was IDENTIKIT.
IDENTIKIT was an American facial composition system which consisted of small clear plastic ‘overlays’ on which were thin, black line drawings of facial features and accessories; e.g. Hair, Chin, Eyes, Nose, Mouth, Eye-brows, Hats, Moustache, Beards, Glasses etc. These were quite restrictive and necessitated witness or victims of crime selecting a specific facial feature from a catalogue (e.g. a number of noses per page from which to select).
None of these features could be edited in any way (e.g. the eyes moved further apart, or closed/open a little; a nose narrowed/widened; a mouth made fuller etc.) Accordingly, the composite image would rarely be as accurate as intended, but was intended as a (graphic) guide only.

(vi) William McDonagh

William McDonagh, who worked for the Gillette Australia Company from January 1966, viewed a photograph of the razor blade and wrapping paper located at the crime scene of Simon Brook and a photograph of the blister pack. Gillette had supplied a basic three-piece safety razor to the defence forces and Mr McDonagh said in his statement that it was ‘quite possible that this razor was supplied to the Australian Defence Forces’. He also said that ‘these packs were also distributed to the Australian Defence Forces’.
(vii) Roger Adair
Roger Adair was the managing director of the Gillette Company from 1960 to 1996 and was based in Melbourne. He stated that the photograph of the razor blade shown to him in 2004 by Detective Senior Constable Rae was manufactured in Melbourne during the last quarter of 1967 and that the Australian Defence Forces was a customer of Gillette at that time, although Gillette also supplied their products Australia wide to both retail outlets and government departments. Furthermore, he emphasised that ‘there were no identifying marks on either the blade or packaging that indicated what customer purchased what blade’. He also stated that the blister packaging depicted in a second paragraph most likely housed the blade and packaging depicted in the first photograph.
(viii) Professor James Ogloff
Professor Ogloff, the Director of Psychological Services at the Victorian Institute of Forensic Mental Health, compiled a Forensic Psychological Report on Percy, having assessed Percy on three occasions at Ararat prison in 2002 and 2003 for a review under s 35 of the Victorian Crimes (Mental Impairment and Unfitness to be Tried) Act in relation to which he gave evidence to the Supreme Court. He reviewed an extensive amount of documentation, including court transcripts, police interviews, Percy’s handwritten notes, prison files and so on. In his statement he emphasised that the condition Percy suffers from is very rare:

Psychiatric and psychological experts who have assessed Mr Percy over more than 30 years have agreed that he suffers from a very rare and serious form of paraphilia (i.e., recurrent, intense sexually arousing fantasies, sexual urges, or behaviours involving non-human objects, suffering or humiliation, or children).

He went on to say:

[F]rom a psychological perspective, it is exceedingly rare for one to have such a serious sadistic sexual paraphilia, as is the case with Mr Percy. Many of the experienced forensic mental health professionals who have seen him over the years have commented that his case was so unusual as to have been one of the only ones they have seen of a similar nature.

He expressed the opinion that it was unlikely that the murder of Yvonne Tuohy was the first offence of that kind engaged in by Percy as it was too complex to have been completed without having been tried before. He based this on the evidence about the circumstances of Ms Tuohy’s death including the admissions made by Percy:

It is, in my opinion, highly unusual as a first serious offence for one to carry out and complete a series of acts as complex as those performed against Ms Tuohy. In my experience, most people who commit sexual homicide report engaging in other actions – sometimes ‘rehearsals’– leading up to their first murder. … at the time that Mr Percy was assessed in 1969, he was said to have described his actions leading up to the abduction and murder of Ms Tuohy as in getting out of his car and going after the victim and the young boy variously as an ‘urge’, ‘impulse’, and a ‘compulsion’. So strong was the compulsion that Mr Percy persisted with the acts even in the face of significant impediments, impediments that would have made most people discontinue the behaviour. For example, he made a futile attempt to grab the boy that was walking with Ms Tuohy. Even after the boy tried to attack him with a tomahawk and fled, and Mr Percy must have known that the boy would go for help, Mr Percy persisted to carry off and abuse the girl. Then, once he had begun his attack in his vehicle, a car approached. Rather than ceasing the behaviour, Mr Percy hid Ms Tuohy and drove her to another location. In my experience, such interruptions often lead the offender to cease the attack, particularly during early experiences. … This suggests to me that the attack and murder of Ms Tuohy was perhaps not the first such attack that occurred.[47]

[47]A statement by the boy who was with Yvonne Tuohy and escaped, was exhibited to the statement of Detective Sergeant Adam Barwick.

He concluded that Percy had the relevant propensity:

[I]t is my opinion that from 1965 or 1966 until he was arrested for the murder of Yvonne Tuohy, Mr Percy had the propensity to commit acts similar to those for which he is now a suspect.

The time period during which Professor Ogloff considered Percy might have offended in the past included the date on which Linda Stilwell was murdered (August 1968).

While Professor Ogloff would not comment on the disappearance of Linda Stilwell because of the lack of specific information about her death, he did comment on the range of similarities and differences between the five other children and concluded that that the murders of Simon Brook and Yvonne Tuohy were most similar:

·Based on my review of the material available, the murder of Simon Brook appears most similar to the acts committed against Ms Tuohy, and is most consistent with some of Mr Percy’s writings. …
·Alan Redston’s case is different from the other murders. …
·The murders of Christine Sharrock and Marianne Schmidt have some similarities to Ms Tuohy’s death; however [there are other features] that raise questions for me about the likelihood that Mr Percy … committed the crimes.

Importantly, Professor Ogloff commented on the reliability of Percy’s memory. He concluded that Percy was able to remember specific details of earlier events, including those that occurred a long time ago, and used an alleged incapacity to recall as an evasive mechanism:

In my assessment, Mr Percy showed no difficulties with either short-term or long-term memory. In fact, he could remember precise details of many facts, both in recent times and from the distant past. Thus, it would appear that his reliance on having no memory of events is a mechanism he uses to attempt to avoid admitting to events or even discussing them.

(2) The purpose for which the statements were relied upon before the Coroner

Before the Coroner, Mrs Priest urged that the statements remain in the Inquest brief on seven grounds, all of which fell under the general proposition that their relevance to the inquest lay in the similarities they demonstrated between the abduction and murders of the other four children in relation to whom Percy was a suspect and the abduction and death of the child in relation to whose murder he had been found not guilty by reason of insanity. The sixth ground asserted squarely that there were striking similarities between the murders of Yvonne Tuohy and Simon Brook.

The first five grounds relied upon were that the statements:

(1) contained an admission made by Percy to Anderson after Percy’s arrest for the murder of Yvonne Tuohy, ‘I’ve really f—ed up this time’, implying that he had done that sort of thing before. The Coroner rejected this as having no linkage to Linda Stilwell;[48]
[48]First ruling.

(2) included comments by Percy to Anderson that he could not remember killing children other than Yvonne Tuohy. Mrs Priest sought to characterise this as a failure by Percy to deny he was responsible for other deaths but the Coroner concluded that a comment that was neither an admission nor a denial was of no assistance to him;[49]
[49]First ruling.

(3) revealed that Percy knew where Simon Brook’s body had been found by police, near a railway embankment. The Coroner rejected this on the basis that he could not exclude the possibility that there was publication of the details of the location where Simon Brook’s body was found;[50]

(4) contained an admission by Percy that he was in the area at the time that Simon Brook died and a response that he didn’t remember whether he killed Brook. This ground was rejected by the Coroner as having no probative value;[51]

(5) included descriptions of the writings of Percy, some of which involved explicit details of abductions and mutilations, which bore a significant and ‘uncanny’ correspondence to the circumstances of Simon Brook’s death. The Coroner rejected this ground on the same basis as his rejection of ground 3, namely, that he did not know what was in the public arena at the time and could not exclude the possibility ‘that [this] may have afforded knowledge to Mr Percy’.[52]

[50]First ruling.

[51]First ruling.

[52]First ruling.

The sixth ground was framed by reference to four points of similarity between Yvonne Tuohy and Simon Brook:

Point No 6. Your Honour, we know that Mr Percy killed Yvonne Tuohy. There are striking similarities between the killing of Yvonne Tuohy and the killing of Brook; similarities in relation to circumstances and injuries. For example, mutilation – both bodies mutilated; injuries to genitals – both children had that. No 3 a deep cut to the throat ear to ear, very deep cut. No 4, gagging and packing of the mouth with material. Yvonne Tuohy had fabric or cloth; Simon Brook had newspaper.

The Coroner did not address the sixth ground in his first ruling as the reliance on the ‘mutilation evidence’ was eventually withdrawn.[53] However, questions about the similarities in the mutilation of the bodies of the children had also been raised under other grounds, and the Coroner’s duty to investigate a death is not confined to the matters raised by interested parties.[54]
[53]First ruling.
[54]See [169]-[171] below.

The seventh ground was that Percy could be linked to the attempted abduction of another child, Linda Read. This was rejected as being of no assistance.[55]
[55]First ruling.

The Coroner ultimately stated:[56]

I rule that … I cannot be satisfied … that there is sufficient similarity in the circumstances surrounding the deaths of Yvonne Tuohy and Simon Brook when related to the abduction of Linda Stilwell to make the statements previously referred to relevant to this inquest and, accordingly, the listed statements will be removed from the inquest brief and not tendered in evidence.

[56]First ruling.

In developing the submissions before the Coroner, counsel for Mrs Priest characterised the relevance of the statements as ‘Stage 2’ of the argument, Stage 1 relating to the finding the Coroner had made that Percy was in Beaconsfield Parade when Linda Stilwell disappeared, a finding made in part on the basis of the admission made by Percy to Anderson. Under Stage 2, counsel argued that the Coroner ought consider the similarities drawn from comparable cases but that it would be unnecessary for him to make any finding with respect to those cases. Counsel said:

Stage 2 is then basically your Honour should be able to look at other cases where we believe Mr Percy has been present at the time and other children have disappeared.
It should be open to the court to look at the facts and the circumstances surrounding those disappearances to infer what may have happened to Linda Stilwell and in order to do this the court will not have to make a finding with respect to those cases, simply just to look at the commonality between them.

In response, counsel assisting the Coroner observed that if the Coroner was not in a position to make a finding, or not invited to make a finding, in relation to the other cases, the statements could have no relevance to the inquest being conducted.

Counsel for Mrs Priest approached Stage 2 by submitting, on the basis of the seven grounds set out above, that the Coroner should also ‘accept’ that Percy was present in the vicinity of the location where Simon Brook was found on the day Brook disappeared, although it was emphasised that ‘we are not asking your Honour to determine who Mr Percy has killed before’.

Counsel sought to explain the relevance of the similarities of the circumstances of death between Yvonne Tuohy and Simon Brook to the inquest into the death of Linda Stilwell by adopting the reasoning of Pfennig v The Queen.[57] The following exchange took place:
[57](1995) 182 CLR 461.

CORONER:    Just before we leave point 6. You’ve given me a series of similarities between Yvonne Tuohy and Master Brook … How does that relate to what I’m dealing with here with Linda Stilwell?
…
COUNSEL:     They are relevant to Linda Stilwell because of this: we know … that Mr Percy killed Yvonne Tuohy. We also know that Mr Percy was in the vicinity of St Kilda (the Esplanade) when Linda Stilwell went missing. The similarities between Yvonne Tuohy – the killing of Yvonne Tuohy and the killing or murder of Simon Brook are so strikingly similar that your Honour should be able to …
CORONER:    Where is the similarity? We’re dealing with mutilation of a body tragically with Yvonne Tuohy and Simon Brook. I can see similarities there. But where is the similarity to Linda Stilwell?
…
COUNSEL:     … it is in the inherent strong improbability of this child mutilation being done by someone else when we know that Mr Percy …
CORONER:    I’m dealing with Linda Stilwell. How is mutilation of Simon or Yvonne relevant to Linda Stilwell?
COUNSEL:     Mr Percy has in his diaries details of mutilation and abduction … there is information there … that he’s abducted Tuohy then your Honour should be able to take the next step and look at other circumstances with respect to Tuohy which are the injuries she sustained and also relate those very similar injuries to Simon Brook and also with the fact that Percy was in the area at the time and infer from that that if we tie it in with the abduction that’s stated in the diary, the abduction that occurred to Tuohy, the abduction that occurred to Brook, the fact that Mr Percy was in the area, the abduction that occurred to Linda Stilwell. It bolsters the argument.[58]

[58]Emphasis added.

The Coroner failed to see any ‘connection between the mutilation of the other two deceased and Linda Stilwell’, commenting that:

If I was looking into an inquest into Simon Brook there may be a relevance.

Counsel responded:

… child abduction and mutilation is very rare.
We know that Mr Percy has abducted and mutilated Yvonne Tuohy. When we look at the injuries that Simon Brook sustained they’re very similar to the injury sustained to Yvonne Tuohy. Your Honour can infer from that, because of those very strikingly similar injuries and the fact that Mr Percy was in the area at the time with respect to Brook that Mr Percy may have had something to do with Brook so we have two abductions there and, your Honour, the fact that we have two abductions that involve Mr Percy, your Honour should be able to look at Mr Percy’s presence with Linda Stilwell and her disappearance and take those other two abductions and mutilations into consideration.[59]

[59]Emphasis added.

The Coroner queried the need to consider the mutilation evidence. This led counsel ultimately to abandon reliance on the mutilation evidence:

CORONER:How is the mutilation of those two [Yvonne Tuohy and Simon Brook] relevant to Linda Stilwell?

COUNSEL:     Your Honour, because those mutilations are so similar.
CORONER:    Between those two deceased?
COUNSEL:     Yes.
CORONER:    What’s the nexus with Linda Stilwell?
COUNSEL:     Your Honour, I will withdraw the mutilations.

Counsel assisting the Coroner argued that the statements would not permit the Coroner to conclude that one person had committed all the other deaths nor permit any level of satisfaction about Percy’s involvement in the death of Simon Brook. Furthermore, he argued that the statements purporting to show similarities bore no relevance because the body of Linda Stilwell had not been found:

[T]here is the insurmountable difficulty posed in this case, for example, in relation to the fact that there is no body.

This submission is explicable only on the basis that counsel assisting understood the statements to be relied on for the purpose of inviting the Coroner to engage in an exercise of comparing the features of the deaths of the other children with the injuries inflicted on Linda Stilwell. The absence of Linda Stilwell’s body clearly posed an insurmountable obstacle to such an exercise. However, as was made clear on the appeal, this was not the exercise the Coroner was invited to engage in when he was urged to retain the statements in the inquest’s brief. Whether the exercise he was invited to engage in was tenable is another question.

(3) The Supreme Court judicial review proceeding

The trial judge rejected the submission that, in excluding the statements, the Coroner had ignored a relevant consideration. He noted that this ground of judicial review can only be made out if a decision-maker fails to take into account a consideration that he or she is bound to take into account.[60] Identifying the relevant considerations governing the making of a decision in the exercise of a statutory discretionary power depends upon construction of the statute that confers the power. Relevantly, s 67 of the Act provides that:[61]
[60]Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
[61]As mentioned above, paragraph [41]. See X v Deputy Coroner of NSW (2001) 51 NSWLR 312, where O’Keefe J stated (at 325 [60]) that the primary duties upon a coroner at common law were, relevantly, ‘to determine and record if a death has occurred and, if so, the identity of the deceased, the date and place of the death and the manner and cause of such death’.

(1) A coroner investigating a death must find, if possible –

(a) the identity of the deceased; and

(b) the cause of death; and

(c) … the circumstances in which the death occurred.

There is no express requirement for the Coroner to find, if possible, the identity of any person who contributed to the cause of death.[62] However, it was conceded by Percy that s 67(1)(c) uses broad language. That language can encompass the identity of a person who caused the death, or contributed to it.
[62]This stands in contrast to s 19(e) of the Coroners Act 1985 (‘the 1985 Act’) which was removed by the Coroners (Amendment) Act 1999.

The trial judge also considered that it was relevant in this context that a coroner has a wide discretionary power to determine the relevant issues for the purposes of an inquest; s 64 provides:

The coroner holding the inquest determines –
(a) the witnesses to be called;[63] and
(b) the relevant issues for the purposes of the inquest.

[63]While an ‘interested party’ (for example, Linda Stilwell’s family) may make a submission as to who would be a relevant witness, a coroner may consider that submission and determine whether the witness proposed should be called.

A coroner has considerable latitude in the manner in which an inquest is held and the information received. A coroner ‘is not bound by the rules of evidence and may be informed and conduct an inquest in any manner that the coroner reasonably thinks fit’.[64]
[64]Section 62(1).

The trial judge considered the statutory context regulating the conduct of an inquest and concluded that the Coroner was under no obligation to take into account the statements in conducting the inquest into the death of Linda Stilwell. In dismissing the challenge to the first ruling, he rejected the need to consider the circumstances of the deaths of the five other children and considered it unnecessary to examine the reasoning or circumstances in Pfennig. He said:[65]

In my view the subject matter, scope and purposes of the Act do not support the Plaintiff’s contention that the Coroner was bound to have regard to the material in the excluded statements. The Coroner was inquiring into the death of Linda Stilwell and was not inquiring into any other deaths. None of the statements directly relate to the disappearance of Linda Stilwell, who has not been found. It is unnecessary for me to canvass the similarities between the circumstances in Pfennig and those in this case. It is not a question of the admissibility of the evidence in question – the Coroner was not bound by the rules of evidence in any event – it is whether he was bound to take these matters into account.
(4) The appeal – Pfennig and propensity evidence

[65]Reasons, [52].

The grounds of appeal relied on by Mrs Priest, with respect to her challenge to the first ruling, included what became the principal ground argued on the appeal, Ground 2; namely, that the trial judge erred in holding that the Coroner was not bound to admit the statements when the Act:

required the Coroner
(a) to hold an inquest in the case of a suspected homicide;
(b)to investigate the cause of death and that such investigation was not to be restricted by the rules of evidence;

(c) to investigate the circumstances in which a death occurred;
(d)to consider his belief after his investigation that an indictable offence may have been committed in connection with the death and to consider the obligation of a principal registrar to notify the Director of Public Prosecutions;

and the statements established

(a)       a propensity in [Percy] to abduct and kill children, and
(b)       the rarity of such an event,
the coroner having found that [Percy] had been in the vicinity of Linda Stilwell on the day of her disappearance; the excluded statements being the only evidence that tended to identify an abductor at the time of the ruling.

More specifically, it was alleged, in Grounds 4 and 5 respectively, that the trial judge erred in failing to find that the Coroner was bound to consider the statements and that the Coroner ‘erred in excluding from his consideration the only evidence at that stage that tended to prove the identity’ of the person who caused Linda Stilwell’s death, and the circumstances in which her death occurred.[66] Mrs Priest thus made it clear that the statements were relevant to the issue of identity.
[66]There were five other related Grounds of appeal (Grounds 1, 3, and 6-8) raising a failure by the trial judge to recognise the implications in the subject matter, scope and purpose of the Act with respect to, inter alia, the investigations of deaths in the case of suspected homicide and the obligation to notify the Director of Public Prosecutions if the coroner considers that an indictable offence may have been committed.

Mrs Priest also applied for leave to amend her notice of appeal to include an additional ground;[67] namely, that the first ruling was irrational, illogical and unreasonable in the Wednesbury sense. Leave was opposed on the basis that the ground could have been raised before the trial judge, but was not. It has proved unnecessary to determine the application for leave.[68]
[67]Ground 8A of the Proposed Amended Notice of Appeal. Mrs Priest also sought leave to include an additional ground to the same effect with respect to the second ruling (Ground 13A).
[68]It has also proved unnecessary to determine the application for leave to include Ground 13A.

Percy submitted that summary and speedy hearings are desirable objectives of the Coroner’s jurisdiction.[69] Section 8 of the Act makes it plain that the Coroner, when exercising a function under the Act was to have regard, as far as possible, to the fact that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death.[70] Permitting the statements to remain on the inquest brief was argued to be likely to cause precisely that distress.
[69]R v HM Coroner for Western District of East Sussex; ex parte Homberg, Roberts and Manning (1994) 158 JP 357. Reliance was also placed on s 9 of the Act which provides that the coronial system should operate in a fair and efficient manner.
[70]This was introduced when the Act replaced the 1985 Act and forms part of the ‘objectives’ of the Act intended to give guidance in the administration and interpretation of the Act: s 6. In the Second Reading Speech the then Attorney-General, Mr Rob Hulls, stated that the Bill ‘draws extensively from the work of the Victorian Parliament Law Reform Committee, which released its final report on the Coroners Act 1985 in September 2006’.

The core of Percy’s substantive argument on appeal was that the statements did not constitute relevant considerations but were at best pieces of evidence that may or may not have borne upon the matter that the Coroner was investigating. The trial judge had accepted this distinction. Percy urged that the appeal should be dismissed because the Coroner was not investigating the death of any child other than Linda Stilwell and the relevance of the statements to that investigation had never been established. It was submitted that:

(1) none of the statements deal with the circumstances of the death of Linda Stilwell;

(2) Professor Ogloff expressly stated that he could not make any comment upon the disappearance of Linda Stilwell given the lack of specific information about the matter;

(3) the Coroner was not investigating the deaths or disappearances of the five other children mentioned in the statements;

(4) the statements canvass the circumstances and similarities surrounding the discovery of the bodies of five individuals and the mutilations to their bodies;

(5) the Coroner did not understand how the killings of Simon Brook and Yvonne Tuohy could relate to Linda Stilwell’s disappearance;

(6) Linda Stilwell has never been found and Percy has never been charged over the death of Simon Brook;

(7) although the Coroner has stated that the evidence to date would support a finding that Linda Stilwell was abducted and is deceased, having met her death by foul play, no conclusive findings have been made in respect of these matters for the purposes of s 67 of the Act;

(8) the Coroner has not made any findings as to when Linda Stilwell went missing or from where she went missing or what exactly happened to her and the statements of Dr Ranson, Dr Mouzos, Professor Ogloff and Detective Sergeant Debra Bennett do not bear upon, nor are logically probative in relation to any of those questions;

(9) before the Coroner the submission was withdrawn that the statements relating to Yvonne Tuohy and Simon Brook were relevant on the basis of the mutilations referred to in them.

In essence, Percy argued that any link to the death of Linda Stilwell had not been made out and the reliance placed upon Pfennig was misplaced.

At the hearing of the appeal, Mrs Priest’s reliance upon Pfennig was more well-defined than it had been before the Coroner. In Pfennig the accused was charged with the murder of a ten-year old boy (M). The boy disappeared at or near Murray Bridge in South Australia. His body was never found. The prosecution case was based upon circumstantial evidence including proof of the accused’s abduction and rape of a thirteen-year-old boy (H) about a year later at Port Noarlunga, offences to which the accused pleaded guilty. The trial judge admitted the evidence of the offences against H. The accused appealed against his conviction to the Supreme Court of South Australia (Court of Criminal Appeal) on the ground that the evidence relating to the abduction of H was inadmissible. The appeal was dismissed. The High Court affirmed the decision of the Court of Criminal Appeal.

The accused gave evidence that he had met M shortly before M disappeared.[71] He saw M fishing near a willow and spoke to him and gave him a knife to dispatch a fish M had caught. M took the knife back to the accused’s van and briefly watched the cricket on a television set inside the accused’s van before returning to the willow. The accused said shortly afterwards he packed up and went into town in his van. The trial judge admitted the evidence of the accused’s prior conviction and observed that the Crown pointed to the unusual type of crime which had been committed, the abduction of a ten-year old boy (H) for sexual purposes, by the use of a van.[72] It relied on the evidence ‘as showing that [the accused] had a disposition to abduct and sexually assault young boys’.[73]
[71]Pfennig v The Queen (1995) 182 CLR 461, 473.
[72]Ibid 488.
[73]Ibid 474.

The High Court held that the trial judge was correct to have admitted the evidence in relation to H. In doing so, the Court applied the principles from Hoch v The Queen[74] to the effect that the basis for admitting similar fact evidence:[75]

lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged.

[74](1988) 165 CLR 292, 294.

[75]Pfennig v The Queen (1995) 182 CLR 461, 481 (Mason CJ, Deane and Dawson JJ).

The strength of the probative value of similar fact evidence may lie in the evidence revealing striking similarities or an underlying unity, although this was recognised as not being essential in every case. In formulating the test for admissibility in Pfennig, Mason CJ, Deane and Dawson JJ said:[76]

Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.

[76]Ibid 482-3. Toohey J also considered that the evidence was admissible and the jury was properly directed as to the use they could make of it: Ibid 509.

The stringent test at common law was subject to statutory intervention in Victoria[77] and has now been replaced by the tendency and coincidence rules of the Evidence Act2008 (Vic).[78]
[77]See s 398A of the Crimes Act 1958 (Vic) (now repealed).
[78]Sections 97 (evidence of tendency) 98 (evidence of coincidence) and 101 (the additional test for admissibility in respect of both tendency and coincidence).

The High Court in Pfennig considered it ‘of first importance’ that the trial judge received the evidence for the purpose of resolving the question of the abductor’s identity and not whether there was an abduction at all. The trial judge did so only after having conducted a voir dire from which he concluded that drowning was not a reasonably possible explanation for M’s disappearance and that M had been abducted and murdered. The voir dire demonstrated that:[79]

[T]he only rational alternative was abduction for a sexual purpose and that, if he was abducted and sexually assaulted, the inference must be that [M] was murdered by his abductor. Later the trial judge carefully instructed the jury that the H. evidence was relevant, at the most to the question of the abductor’s identity and that it could not be used to resolve any doubts on the question whether there was an abduction at all. It was only if, on the Murray Bridge evidence, the jury rejected drowning as a reasonable possibility and were satisfied that [M] was abducted and murdered, they could take into account the H. evidence in deciding whether the [accused] had committed the abduction and murder.

[79]Pfennig v The Queen (1995) 182 CLR 461, 485–6.

There are some parallels here with the findings made by the Coroner. Independently of any consideration of the statements, the Coroner made a finding, mentioned above,[80] that on the evidence to date Linda Stilwell had been abducted and was deceased, ‘having met her death by foul play’.[81] He considered, in the context of the second ruling, that the offence relevant to his determination was murder. The statements were not relied on improperly as evidence on the question of whether there had been an abduction at all.
[80]See [46] above.
[81]Second ruling.

(5) Conclusion on the First Ruling

[99]This issue is also discussed further below, [158]–[166].

It follows from the reasons I have expressed above that I consider that the trial judge erred and the first ruling was wrong at law.

The Second Ruling

A coroner has the power to ‘order a witness to answer questions’.[100] A witness can object to giving evidence under s 57(1) of the Act, which allows him or her to claim privilege on the ground that the evidence may tend to prove that the witness ‘has committed an offence against or arising under an Australian law’. Pursuant to s 57(2), upon such an objection being made:

The coroner must determine whether or not there are reasonable grounds for the objection.

[100]Under s 55(2)(c) of the Act.

If a coroner determines that there are reasonable grounds for the objection, he or she can nevertheless compel the witness to give evidence under s 57(4), notwithstanding the objection, if the coroner is satisfied that the ‘interests of justice require that the witness give the evidence’.

A witness may also voluntarily decide to give evidence after a coroner has determined that his or her objection is reasonable.[101]
[101]Section 57(5).

In those circumstances, if the witness is either compelled to give evidence, or voluntarily gives evidence, a coroner must give the witness a certificate of immunity. The obligation to provide a certificate is in s 57(5):[102]

If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that section, the coroner must cause the witness to be given a certificate under this section in respect of the evidence.

[102]Emphasis added.

The scope of the certificate of immunity includes protection against both direct and derivative use of any statements made, or documents provided, at the inquest. The immunity is provided under s 57(7) as follows:

In any proceeding in a court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence –
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)any information, document or thing obtained as a direct or indirect consequence of the person having given evidence –

cannot be used against the person.

Section 57(3) provides that a coroner is to give the witness information about the availability of a certificate and its effect. It reads:[103]
[103]Emphasis added.

If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness –

(a) that the witness need not give the evidence unless required by the coroner to do so under subsection (4); and

(b) that the coroner will give a certificate under this section if –

(i) the witness willingly gives the evidence without being required to do so under subsection (4); or

(ii) the witness gives the evidence after being required to do so under subsection (4); and

(c) of the effect of such a certificate.

During the inquest, counsel assisting the Coroner sought to call Percy to give evidence.[104] Counsel for Percy objected to Percy giving evidence on the ground that the evidence would tend to incriminate him. The objection was made globally to any questioning, rather than to questions of a specific character. He argued that the objection was made on reasonable grounds, as he was suspected of having killed Linda Stilwell and questions would be asked for the purpose of exposing his responsibility for Linda Stilwell’s death and potentially incriminating him. The Coroner accepted that the objection was made on reasonable grounds.
[104]Pursuant to s 55(2)(a) of the Act.

Counsel also submitted that it was not in the interests of justice for the Coroner to compel Percy to give evidence because there was a substantial chance that Percy would be prosecuted for murder after giving evidence. Furthermore, it was submitted, the reliability of any evidence he might give was compromised because he was suffering a psychiatric condition at the time the alleged murders occurred. Moreover, it had been recognised that the public interest in compelling a witness to give evidence was reduced when the giving of evidence would incriminate the witness for murder.

The Coroner did not require Percy to give evidence. He rejected the submission of Mrs Priest that the likelihood of Percy being prosecuted was ‘infinitesimal’ and he had concerns that Percy’s evidence would be unreliable:

In this case the abduction occurred over 40 years ago and at a time when Percy may well have been of unsound mind, the mental illness he was subsequently found to suffer. I would not have a high level of confidence in these circumstances as to the reliability of the evidence given.

The Coroner also did not inform Percy that if he voluntarily gave evidence he would be given a certificate of immunity; nor did he tell him the effect of a certificate.[105]

(1) What was the consequence of the failure to inform?

[105]This was common ground between the parties.

The trial judge determined that the Coroner was not obliged to inform Percy that (1) he could willingly give evidence without being required to do so and (2) that he would give Percy a certificate if he did so.[106] He held that a failure strictly to comply with the requirements of s 57(3) did not invalidate the second ruling, in accordance with the principle in Project Blue Sky v Australian Broadcasting Authority[107] that a breach of a condition regulating the exercise of a statutory power will only invalidate that exercise if ‘there can be can be discerned a legislative purpose to invalidate any act that fails to comply with the condition’.[108]
[106]Reasons, [69].
[107](1998) 194 CLR 355.
[108]Ibid 389.

The trial judge relied on the differences in the statutory language between s 57(3) and s 57(5), especially the contrast between the ‘is’ of s 57(3) and the imperative ‘must’ of s 57(5). He said:[109]

Is the legislative purpose of s 57(3) to invalidate any act that fails to comply with [its] requirements?
The language used in s 57(3) is plainly relevant in deciding this question. Section 57 does not say, in terms, that a failure to comply with the requirements of s 57(3) renders the exercise of the Coroner’s power under s 57 invalid. Section 57(3) provides that ‘the coroner is to inform the witness’ of the matter specified. This may be contrasted with the more emphatic language of s 57(2), ‘the coroner must determine’, and s 57(5), ‘the coroner must cause the witness to be given a certificate’.
The use of different language within the same section is telling. It would have been a simple matter to express s 57(3) in mandatory terms, but Parliament chose not to do so. This suggests that the direction to the Coroner in s 57(3) was not intended to be mandatory.

[109]Reasons, [64]–[67].

He also took account of the broader legislative context and the need for an inquest to be conducted in a fair and efficient manner and with as little formality and technicality as the interests of justice permit. With respect to the ‘interests of justice’ he noted that, before the Coroner, Percy was represented by counsel and his counsel was familiar with the availability and effect of a certificate.

On appeal, Percy submitted that the trial judge’s reliance on the differences in the statutory language was correct.

However, Mrs Priest argued,[110] the trial judge was wrong to conclude that there was no requirement on the Coroner to inform Percy that he could give evidence voluntarily and, if he did so, he would be protected by a certificate of immunity against direct or derivative use of any evidence he gave. In order to make an informed decision whether to give evidence, despite having reasonable grounds for claiming the privilege against self-incrimination, a witness was entitled to know whether he or she would receive immunity, and what the scope of that immunity would be. The corollary of the entitlement of the witness was the obligation on the Coroner to inform.
[110]Ground of appeal 9.

Emphasis was placed upon the inter-connection between s 57(2) and s 57(3). The Coroner was obliged to determine whether there were reasonable grounds for an objection to giving evidence, if an objection was made claiming privilege against self-incrimination. So much is clear from the mandatory language of s 57(2). It was submitted that if it was imperative for a coroner to determine the reasonableness of an objection and, having done so, found that the objection was reasonable, then it was also imperative for a coroner to take the next step and inform the witness that he or she may still be required to give evidence, or may give evidence willingly, and explain the protection afforded if evidence was given. The obligation to inform the witness under s 57(3) flowed automatically from the earlier obligation under s 57(2). The use of the word ‘is’ could not detract from the obligations that arose on a finding that the objection was reasonable. Had the Parliament intended to confer a discretion on a coroner to determine in what circumstances a witness was to be informed of the availability of a certificate of immunity, it could have chosen the word ‘may’.[111]
[111]See the Interpretation of Legislation Act 1984 (Vic), s 45(1).

It was further submitted that the inter-connection between the sub-sections of s 57(3) revealed that the obligation to inform was mandatory. If a coroner is to insist that a witness give evidence that might be incriminating, under s 57(4), he or she must surely be required to inform the witness, under s 57(3)(b)(ii), of the protection available. The provision of the certificate is mandatory under s 57(5) and the obligation to inform of the effect of the certificate, under s 57(3)(c), must also be mandatory. But if a coroner’s obligation to inform a witness of the availability and effect of a certificate, under s 57(3)(b)(ii) and s 57(3)(c), is mandatory, it would be a curious construction to interpret as not mandatory the requirement to inform a witness, under s 57(3)(b)(i), that a certificate will be given if the witness willingly gives evidence, and the effect of such a certificate, under s 57(3)(c). That is, it would be a curious construction of the stipulation that a coroner is to inform a witness that if he or she willingly gives evidence a certificate of immunity will be given, and the effect of that certificate, under s 57(3)(b)(i) and s 57(3)(c), if an action that failed to satisfy its requirements was not invalid, given that one can readily discern the invalidity of an action taken which failed to inform a witness that, if required to give evidence, he or she would be granted a certificate, and the effect of the certificate, under s 57(3)(b)(ii) and s 57(3)(c). It would be anomalous to treat the obligation to inform as leading to invalidity in one context but not in another when the obligation to inform is all dealt with within the one section, namely, s 57(3).

I agree.

It is necessary to read each of the sub-sections of s 57(3) in the light of the other sub-sections and together with the obligations imposed on a coroner by s 57(2) and s 57(5). Attention to the legislative scheme requires consideration of the significance of what a witness may be required, or invited, to do and what information must be given about the form of protection that will be given, set against the background that in this context a claim for privilege against self-incrimination will have been made and upheld. The phrase ‘is to’ in s 57(3), in that context, should be read as an imperative. It is clear from the language of s 57(3) and s 57(5) that the words ‘is to’ and ‘must’ were used interchangeably as words of obligation.[112] In my view, one can discern from the legislative purpose that the Coroner was obliged to inform Percy that if he willingly gave evidence he would be given a certificate of immunity and that this was a pre-condition of the power under s 57(4) to require him to give evidence. In other words, Parliament intended that a failure to comply with s 57(3) would invalidate any ruling under s 57(4). The fact that Percy was represented by counsel who appeared to know about the availability of a certificate could not detract from the obligation imposed by the Parliament on the Coroner.
[112]This is also clear from the language of s 57(5) and s 57(6). The former is set out at [136] above and the latter provides: ‘The coroner is also to cause a witness to be given a certificate under this section if – (a) the objection has been overruled; and (b) after the evidence has been given, the coroner finds that there were reasonable grounds for the objection’ (emphasis added).

The failure of the Coroner to discharge his obligation under s 57(3) invalidated the second ruling.

(2)Did the Coroner ignore relevant considerations or take into account irrelevant considerations?

As mentioned above, the Coroner based his second ruling, in part, on the lack of confidence he would have with respect to the reliability of any evidence Percy would give. There was no question as to Percy’s capacity to give evidence.[113] The Coroner arrived at his conclusion without considering Professor Ogloff’s statement which he had already excluded and which he was not invited to consider by any party in this context.[114] However, he took into account the reports of two psychiatrists, Dr Bartholomew and Dr Ball, who had given evidence at Percy’s trial for the murder of Yvonne Tuohy in 1970.
[113]Reasons, [77].
[114]Reasons, [87].

It was accepted by Mrs Priest that the reliability of the evidence was relevant to the question, under s 57(4)(b), of whether the ‘interests of justice’ required that Percy give evidence.[115]
[115]Reasons, [81].

The reports of Dr Bartholomew and Dr Ball addressed the question of Percy’s psychological state at the time he killed Yvonne Tuohy.[116] Dr Bartholomew’s report, dated 23 March 1970, attributed Percy’s ‘amnesia’ about the offence as ‘being compounded of an unwillingness to admit to his deeds plus some degree of hysterical repression’.[117] In his opinion, at the time Percy killed Yvonne Tuohy, he was in a psychotic state. Dr Ball’s report, dated 1 April 1970, similarly attributed Percy’s amnesia to his ‘denial and repression of what had happened with the amnesia being of an hysterical nature’.[118] He stated that when he examined him, Percy’s ‘memory for recent and remote events was intact’[119] and that ‘the amnesia was never complete – viz – varied hints in the depositions, and in any case was of only short duration’.[120]
[116]Reasons, [93], [98].
[117]Reasons, [83].
[118]Reasons, [83]-[84].
[119]Reasons, [84].
[120]Ibid.

As described above,[121] in his statement Professor Ogloff expressed the view that Percy had no difficulties with his short-term or long-term memory, could remember precise details of distant and recent facts, and used his amnesia as a mechanism to avoid admitting or discussing events.
[121]See [77] above.

Before the trial judge, Mrs Priest submitted that the Coroner ignored a relevant consideration when he failed to take into account Professor Ogloff’s statement, for the purpose of determining the reliability of any evidence Percy might give, when he was bound to do so.[122] Conversely, she submitted that the trial judge had erred by failing to conclude that the reports of Dr Ball and Dr Bartholomew were irrelevant considerations which the Coroner had taken into account when he was prohibited from doing so.[123] This submission was made despite counsel for Mrs Priest submitting before the Coroner that he should have regard to those reports.[124]
[122]See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration v Yusuf (2001) 206 CLR 323, 351 [82].
[123]See Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, 288.
[124]Reasons, [80]–[81].

The trial judge held that a distinction should be drawn between, on the one hand, relevant and irrelevant considerations and, on the other hand, the evidence that may bear on those considerations. He regarded the statement of Professor Ogloff and the two psychiatric reports as items of evidence rather than relevant considerations[125] and concluded that it was therefore not open to challenge a decision to take them into account or ignore them.
[125]Reasons, [93], [97].

In considering the two psychiatric reports, he said:[126]

[T]he submission is misconceived. A distinction may be drawn between a relevant consideration and the evidence which may be said to bear on that consideration. The same conceptual distinction may be made in the context of an irrelevant consideration. Applying that proposition here, the consideration in question is the reliability of the evidence which Mr Percy might give. It is not suggested that in deciding whether to compel Mr Percy to give evidence the Coroner was precluded from considering the reliability of such evidence. The challenge is to the matters to which the Coroner had regard in considering the question of reliability. The reports of Drs Bartholomew and Ball amount to evidence which may bear on that consideration. The two reports do not constitute a ‘consideration’ (whether relevant or irrelevant), rather they are merely items of evidence.
Seen in this way it is not open to the Plaintiff to challenge the Coroner’s reliance on the two reports.

[126]Reasons, [93]–[94].

The same inference was drawn with respect to the statement of Professor Ogloff:[127]

Professor Ogloff’s report does not amount to a ‘relevant consideration’ in the context of jurisdictional error. It is an item of evidence that bears on a relevant consideration, it is not a relevant consideration in its own right.

[127]Reasons, [97].

The trial judge held that if he was wrong about the distinction between relevant and irrelevant considerations and mere items of evidence, he was not persuaded that the Coroner was precluded from considering the psychiatric reports, nor persuaded that the Coroner was obliged to consider Professor Ogloff’s statement, especially when no one sought to rely on that statement for the purpose of assessing reliability. Furthermore, he concluded that, even if the Coroner had committed an error of law, in his discretion he would refuse to grant certiorari on the ground that Mrs Priest invited the Coroner to consider the psychiatric reports and had not invited him to take into account Professor Ogloff’s statement in the context of the second ruling. Moreover, the question of reliability was but one of various factors the Coroner took into account in deciding not to compel Percy to give evidence, the factor of greatest significance being the nature of the offence with which Percy would be at risk of self-incrimination; namely, murder.

On appeal, Mrs Priest reiterated her complaint that the Coroner had erred in law by taking into account irrelevant considerations and ignoring relevant considerations[128] and that his discretion miscarried.[129]
[128]Grounds of appeal 10, 11, 12.
[129]Ground of appeal 13.

In the context of discussing relevant considerations, courts have drawn a variety of distinctions. In Minister for Immigration and Citizenship v MZYHS,[130] Kenny J distinguished between a decision-maker being bound to consider the ‘integers’ of a refugee claim, and a failure to take into account a piece of evidence which might have led to an erroneous finding of fact insufficient to give rise to jurisdictional error.[131] Kenny J was drawing upon the distinction made by Allsop J in Htun v Minister For Immigration and Multicultural Affairs.[132] Warren CJ, Maxwell P and Osborn AJA also distinguished between ‘salient facts’ and ‘pieces of evidence’ in Macedon Ranges Shire Council v RomseyHotel Pty Ltd[133] in concluding that ignoring the results of a community survey indicating opposition to the prospect of gaming at the only hotel in the community was not to be treated as the ‘mere overlooking of a piece of evidence’.[134] The Court held that the community opposition was a ‘substantive element’ of social impact, such impact being a consideration the tribunal was bound to take into account.
[130](2011) 119 ALD 534.
[131]Ibid 539–42 [23]–[24], [27], [32].
[132](2001) 194 ALR 244, 259 [42].
[133](2008) 19 VR 422, 435–6 [44]–[51], relying upon statements made by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
[134]Ibid 435 [46].

The distinction between ‘salient facts’ and mere ‘pieces of evidence’ turns on whether ignoring the material illustrates a failure to give proper consideration to the underlying matter to which the material is submitted to be relevant. This is why, in Minister for Aboriginal Affairs v Peko-WallsendLtd,[135] Brennan J described ‘salient facts’ as:[136]

… facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.

[135](1986) 162 CLR 24.

[136]Ibid 61.

As mentioned above, it was conceded that the reliability of any evidence Percy might give was a relevant consideration as to whether he should be compelled to give evidence under s 57(4). Mrs Priest submitted that the date for determining reliability must be the date on which the evidence is to be given, and at no other time. The statement of Professor Ogloff was the most contemporary medical evidence relevant to the issue of reliability and took into account the medical histories provided from many other doctors. By contrast, the psychiatric reports were 39 years old and contained outdated and superseded information and analysis.

In my view, a failure to consider the most contemporary medical assessment available of Percy’s short-term and long-term memory was a failure by the Coroner to take into account a salient fact that gave vital shape and substance to the issue of reliability. The statement was not a mere ‘piece’ or ‘item’ of evidence. Ignoring the statement of Professor Ogloff meant that the issue of reliability, which was a relevant consideration to the question of compellability, and thus to the second ruling, had not been properly considered.

Moreover, it is fundamental to an inquest that it be inquisitorial in nature, involving a process of investigation for the purpose of finding facts and not apportioning guilt.[137] The functions and powers conferred on a coroner are consistent with the character of an inquest as an inquisitorial[138] and not adversarial process. The Coroner’s Court is described under the Act as an ‘inquisitorial court’.[139] As has been observed: [140]

The coroner’s primary duty has become the finding of the cause of death. In performing this function, the coroner’s role is in essence inquisitorial, in that the coroner must discover all he or she can about the circumstances surrounding the death.

[137]Annetts v McCann (1990) 170 CLR 596.

[138]Re The State Coroner; Ex parte the Minister for Health [2009] WASCA 165, [22].

[139]Section 89(4) of the Act.

[140]Victorian Parliament Law Reform Committee, Coroners Act 1985 – Final Report (2006), 251. See also the Second Reading Speech of the Coroners Bill: Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4037 (Rob Hulls, Attorney-General).

As mentioned above,[141] when conducting the inquest a coroner is not bound by the rules of evidence but ‘may be informed and conduct an inquest in any manner that the coroner reasonably thinks fit’.[142]
[141]See [96] above.
[142]Section 62.

The power of the Coroner’s Court to inform itself as it thinks fit means that its inquiries are not dependent on the ‘case’ presented by the parties. Rather, a coroner has an obligation, independently of the positions taken by the parties, to perform the statutory functions of determining, if possible, the cause and circumstances of death.

As this Court said in Weinstein v Medical Practitioners Board of Victoria:[143]

By giving the panel power to inform itself ‘in any way it thinks fit’, Parliament has clearly differentiated the panel’s conduct of a formal hearing from the judicial paradigm. Whereas the judicial paradigm is essentially passive – in the sense that the court relies on the adversarial parties to present the evidence and define the issues for decision – the panel’s work is thus stamped with an inquisitorial character. … As the court noted in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd, the essence of inquisitorial adjudication:
Lies in the active participation of an impartial investigator from the earliest stages of the proceedings. The investigator has primary responsibility for defining the issues and is able to supervise the gathering of evidence.

[143](2008) 21 VR 29, 38 [30].

The Parliament intended that a coroner actively participate in an inquest, and not be dependent on the submissions made by the parties, by conferring the power to determine the witnesses to be called[144] and the relevant issues to be addressed.[145]
[144]Section 64(a).
[145]Section 64(b).

In my opinion, the Coroner was obliged to take into account the evidence of Professor Ogloff on the reliability of Percy’s memory regardless of whether the parties relied on that statement. The trial judge was wrong to conclude that the Coroner had not ignored a relevant consideration when he failed to take into account Professor Ogloff’s statement on the issue of reliability. Furthermore, the trial judge’s discretion, in any event, to refuse certiorari, miscarried because it was based on a mistaken assumption that the conduct of the inquest was dependent upon the submissions made before him. The trial judge, in this context, ignored the relevant consideration that an inquest has an inquisitorial character in which a coroner has the role of an active participant with primary responsibility for defining the issues and the gathering of evidence.

However, I do not consider that the Coroner erred by taking into account the psychiatric reports of Dr Ball and Dr Bartholomew because they related, historically, to Percy’s capacity to remember and the psychological barriers to recall he had experienced. In my view, the Coroner was not prohibited from taking these reports into account.

(3) Conclusion on the Second Ruling

I consider that the trial judge erred in failing to interpret s 57(3) as imposing a requirement demanding strict compliance by the Coroner to inform Percy that he would give him a certificate of immunity if he willingly gave evidence and that this invalidated the second ruling. I also consider that the trial judge erred in failing to recognise that the Coroner was obliged to take into account Professor Ogloff’s evidence on the issue of the reliability of Percy’s memory. I do not consider that the trial judge erred in concluding that the Coroner, when he relied on the reports of Dr Ball and Dr Bartholomew, took into account irrelevant considerations.

Were the errors of law made on the face of the record?

The trial judge proceeded on the basis,[146] then accepted or assumed by the parties,[147] that the Coroner was a statutory tribunal for the purposes of judicial review and that a failure to take into account a relevant consideration was a jurisdictional error that would invalidate any order or decision that reflected it.[148]
[146]Reasons, [8].
[147]Reasons, [5].
[148]See Craig v South Australia (1995) 184 CLR 163, 179.

On the appeal, Percy submitted that the Coroner’s Court is an inferior court and pointed not only to its name but also to various statutory indicia in support of this proposition.[149]
[149]See, inter alia, ss 62, 66, 75, 89, 91-95, 97, 101, 103, and 105 of the Act.

The extent of jurisdictional error is narrower in the case of an inferior court from that of a statutory tribunal and a failure to take into account a relevant consideration by an inferior court will not ordinarily involve a jurisdictional error.[150] However, a non-jurisdictional error of law will not be immune from review, whether made by a statutory tribunal or an inferior court, if the error is disclosed on the face of the record, for which certiorari will lie.[151] The High Court in Kirk v Industrial Court of New South Wales[152] confirmed the continuing utility of judicial review based on error of law on the face of the record.
[150]See Craig v South Australia (1995) 184 CLR 163, 196: ‘a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error’. See also Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 572 [67].
[151]Craig v South Australia (1995) 184 CLR 163, 176; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338; Hockey v Yelland [1984] 56 ALR 215, 219; Glenville Homes Pty Ltd v Builders Licensing Board [1981] 2 NSWLR 608.
[152](2010) 239 CLR 531, 576 [80].

In Victoria, s 10 of the Administrative Law Act 1978 (‘the ALA’) provides an extensive definition of the ‘record’ that includes the reasons for decision. Section 10 of the ALA reads:

Any statement by a tribunal or inferior court whether made orally or in writing … of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

This definition of ‘the record’ is much broader than the common law that, in the absence of statutory prescription, does not include the transcript, the exhibits or the reasons for decision.[153]
[153]Craig v South Australia (1995) 184 CLR 163, 181, 182.

The extensive definition of the ‘record’ in s 10 of the ALA applies not only to proceedings brought under the ALA but also to proceedings brought under the common law and under Order 56 of the Supreme Court Rules.[154]
[154]Georgiou v Capital Radiology Pty Ltd [2011] VSC 158 [14]; Hansfordv His Honour Judge Neesham (1995) 2 VR 233; Thompson v His Honour Judge Byrne (1998) 2 VR 274, 280; Flynn v DPP (1998) 1 VR 322; Kuek v Wellens [2000] VSC 326, [54].

The errors of law made here, which I have described above, were made within the context of the first and second rulings. Those errors appear within the Coroner’s reasons and thus on the face of the record. It is unnecessary for this Court to determine whether the Coroners Court is a statutory tribunal or an inferior court or whether the errors were jurisdictional or non-jurisdictional. The errors of law are reviewable and certiorari may, and in my view should, be granted.

Conclusion on the appeal

I would allow the appeal and set aside the judgment and orders of the trial judge made 7 October 2010.

I would make an order in the nature of certiorari quashing the first and second rulings and direct that the inquest, currently adjourned, should be reconvened to be conducted according to law.

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[2012] VSCA 327

20 December 2012