R v Tennent; Ex parte Jager

[2000] TASSC 64

[2000] TASSC 64

CITATION:                 R v Tennent; Ex parte Jager [2000] TASSC 64

PARTIES:  R
  v
  TENNENT, Shan Eve

JAGER, Alan, Ex parte

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M134/2000
DELIVERED ON:  9 June 2000
DELIVERED AT:  Hobart
HEARING DATE:  5 June 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Magistrates - Coroners - The Coroner and the Coroner's Court - Proceedings at inquest or inquiry - In general - Whether belief of Coroner that a crime has been committed the proper subject of address by counsel - Whether such address impliedly prohibited by statute.

Coroners Act1995 (Tas), ss28, 30(3)
Attorney-General v Maksimovich (1985) 4 NSWLR 300, Keown v Khan [1999] 1 VR 69, Annetts v McCann (1990) 170 CLR 596, referred to.
Aust Dig Magistrates [284]

REPRESENTATION:

Counsel:
             Prosecutor:  B D Bongiorno QC, R C Mackay
             Respondent Coroner:  T J Ellis
             Respondent Relative:  R A Browne
Solicitors:
             Prosecutor:  Dobson Mitchell & Allport
             Respondent Coroner:  Director of Public Prosecutions
             Respondent Relative:  Legal Aid Commission of Tasmania

Judgment  Number:  [2000] TASSC 64
Number of paragraphs:  12

Serial No 64/2000
File No M134/2000

THE QUEEN v SHAN EVE TENNENT
Ex parte ALAN JAGER

REASONS FOR JUDGMENT  COX CJ

9 June 2000

1. Return of a general order to show cause why a Writ of Prohibition should not be granted to prohibit the respondent Coroner from proceeding to hear from counsel assisting the inquest into the deaths of Christopher William Douglas, Thomas Patrick Holmes, Jack Newman, Laurence Colin Santos and Fabian Guy Long or from counsel for any parties given leave to appear at the inquest submissions which in any way touch or concern:

(a)       whether the prosecutor has or may have committed an indictable offence; and

(b)       her belief that an indictable offence has been committed by the prosecutor.

The sole ground is:

"That the only matters upon which submissions can properly be heard by the Coroner are those directed at the findings which she must make as prescribed by section 28 of the Coroners Act 1995, subsection (4) of which provides that a Coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence, and therefore no submissions touching or concerning that issue should be entertained by the Coroner."

1. The Coroners Act 1995 ("the Act"), s28 provides:

   "28 ¾ (1) A coroner investigating a death must find, if possible ¾

   (a)   the identity of the deceased; and

   (b)   how death occurred; and

   (c)   the cause of death; and

   (d)   when and where death occurred; and

   (e)he particulars needed to register the death under the Registration of Births and Deaths Act 1895; and

   (f)   the identity of any person who contributed to the cause of death.

   (2) A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate.

   (3) A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.

   (4) A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence.

   (5) If a coroner holds an inquest into the death of a person who died whilst that person was a person held in custody or a person held in care or whilst that person was escaping or attempting to escape from prison, a detention centre or police custody or from an institution, the coroner must report on the care, supervision or treatment of that person while that person was a person held in custody or a person held in care."

   By the Act, s30(3), it is provided:

   "30 ¾ …

   (3) A coroner must report to the Attorney-General if the coroner believes that an indictable offence has been committed in connection with a death which the coroner investigated."

2. In the matter before me, the Coroner has completed hearing evidence in respect of the deaths of five persons who died while held in custody. At the commencement of addresses, counsel assisting the Coroner gave an indication that it was his intention to make submissions to the Coroner that she should report to the Attorney-General pursuant to the Act, s30(3) that she believes that the prosecutor has committed the indictable offences of assault contrary to the Criminal Code, s184 and/or manslaughter contrary to s159 thereof in respect of Laurence Colin Santos. Counsel for the relatives of Mr Santos indicated a similar intention. The Coroner over-ruled an objection made to this course by the prosecutor's counsel at the inquest and indicated that she would receive such submissions.

1. Under the repealed Coroners Act 1957, s16, if in the opinion of the coroner the evidence taken at an inquest touching a death or a fire was sufficient to put a person on trial for (inter alia) murder, manslaughter or arson or raised a strong or probable presumption that a person was guilty of any such offence, the coroner was obliged to order that person's committal for trial to the Supreme Court.  The present Act, in common with the New South Wales Coroners Act 1980 and the Victorian Coroners Act 1985, did away with this power and obligation. In the case of the New South Wales Act, it was provided (s19) that where the coroner at any time during the course of an inquiry was of opinion that the evidence given at the inquiry established a prima facie case against any known person for an indictable offence, he should terminate the inquiry and forward the depositions to the Attorney-General, together with a statement signed by him specifying the person and particulars of the offence.  That Act likewise prohibited the coroner from making any record which indicated or suggested that an offence had been committed by any person.  By the Victorian Act, which contains almost identical provisions in this respect to the Tasmanian Act, a coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence and must report to the Director of Public Prosecutions if he or she believes that an indictable offence has been committed in connection with a death which the coroner investigated.

1. In Attorney-General v Maksimovich (1985) 4 NSWLR 300, the Court of Appeal was concerned with the question whether the coroner, having terminated the inquest because he had formed such a view, could publicly identify the person suspected of being involved in an offence. The Court of Appeal held that he could not. Kirby P, having traced the history of the New South Wales Act, said of the relevant provision (at 314):

"That section provides for the continuance of a novel, reforming legislative change in the function of the coroner which should not be undermined by coroner's practice, nor frustrated by narrow construction of the language of the statute that ignores the legislative history and its manifest object.  That object was to terminate the abuse of coronial inquiries including the naming of persons as suspects, although the suspicion may have arisen from inadmissible evidence and although no charge might later be brought against the named suspect.  It was for this reason that the Parliament introduced the obligation of termination of the inquiry and the facility for the coroner to send to the Attorney-General the depositions and a statement specifying the name of the person suspected and particulars of the offence.  The policy of the legislation is to ensure that such persons, so named, shall have the beneficial advantage of a careful, prosecutorial decision, considering admissible evidence.  Neither the Attorney-General, nor named suspects, should be harassed by the pressure that might be imposed if the suspects were publicly named by a coroner in the midst of his inquiry."

The other members of the Court (Samuels and McHugh JJA) agreed (at 316) that the legislature plainly intended that of the coroner's opinion should be conveyed by him to the Attorney-General in confidence and not otherwise disclosed or revealed.

1. The Victorian Act, upon which the Tasmanian Act is based, was enacted following a general review of the Coroners Act 1958 (Vic) conducted by the Honourable Sir John Norris QC.  In Keown v Khan [1999] 1 VR 69, Calloway JA made a number of observations about the "Norris Report" and the provisions of the Victorian Act. One of the questions in that case was whether a finding by the coroner that a police officer had acted in lawful self-defence when she shot the deceased was one which could be reviewed and declared void under the Victorian Act, s59 (cf, the Act, s58). The Court of Appeal held that it was such a finding, for it was a finding in respect of how the deceased's death occurred (cf, the Act, s28(1)(b)). At 72 - 73 Calloway JA said:

"The report's principal recommendation was that a coroner should no longer have power to commit a person for trial or to make any finding of legal responsibility. I use the expression 'legal responsibility' advisedly: it was intended that there should be no determination of criminal or civil liability and that even the references to negligence in s 414 of the Mines Act 1958 and s 50 of the Coal Mines Act 1958 should be deleted. Sir John's recommendation as to civil liability generally was not adopted, for ss 19(3), 36(3) and 55(6) prohibit only a statement that a person is or may be guilty of an offence; but the Mines Act and the Coal Mines Act were amended to delete the references to negligence, so that the substance of his recommendations was adopted, namely that an investigation, with or without an inquest, should be a purely factual inquiry."

At 75 - 76, he said:

"A coroner is not concerned with questions of law of that kind.  Instead the coroner is to find the facts from which others may, if necessary, draw legal conclusions.  As para 153 of the Norris Report said:

'It is necessary to emphasise that if the coroner is no longer required to determine whether the cause of death was unlawful, and if so, who was guilty of the crime, the original purpose of the verdict, to indicate legal responsibility for the death, substantially disappears.  If the coroner or jury is not to include any statement of legal responsibility or to express any conclusion of law on the matters he or the jury is required to determine as recommended in paragraph 125 above, this consequence is reinforced.  The result is, as stated by the Brodrick Committee (para 16.40):- "In future the function of an inquest should be simply to seek out and record as many of the facts concerning the death as public interest requires, without deducing from those facts any determination of blame."  The findings of the coroner or jury should in terms be findings of fact only.  To quote the Brodrick Committee again:-  "In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceedings which affords to others the opportunity to judge an issue and one which appears to judge the issue itself".'"

Again, at 76 - 77, he observed:

"Adopting the principal recommendation of the Norris Report, Parliament expressly prohibited any statement that a person is or may be guilty of an offence.  The reasons for that prohibition apply, with even greater force, to a finding of moral responsibility or some other form of blame:  the proceeding is inquisitorial; the conclusion would be more indeterminate than a conclusion about legal responsibility; and there would be no prospect of a trial at which the person blamed might ultimately be vindicated by an acquittal.

It follows that a person who kills necessarily contributes to the cause of death and that that is none the less true where the killing is in lawful self-defence.  A coroner is not concerned with the latter question but will ordinarily set out the relevant facts in the course of finding how death occurred and the cause of death.  The facts will then speak for themselves, leaving readers of the record of investigation to make up their own minds about lawful self-defence or any similar issue."

1. The focus of an inquest conducted under the Act being the ascertainment of facts without deducing from those facts any determination of blame, and the mischief sought to be avoided being the public naming of persons as suspected of criminal activity when they may never be charged, submissions to the coroner that he or she should form a belief that a named person has committed an indictable offence in connection with a death being investigated by the coroner would serve little purpose but to frustrate the intention of Parliament by attracting the very attention from the press and the public which the prohibition seeks to avoid. True, such submissions do not have the same force as a public statement of belief by the coroner and can presumably do less damage, but they clearly have a potential to prejudice the person named.

1. The argument that a person at risk of being named in respect of a report to the Attorney-General under s30(3) ought be given the opportunity to make submissions that the belief should not be formed and that therefore those seeking to advocate the contrary should also be entitled to do so is without substance. In the first place, the formation of such a belief by the coroner does not affect that person's rights or reputation. It has no legal consequences other than that it obliges the coroner to report his or her belief in confidence to the Attorney-General and by implication imposes on the latter an obligation to consider whether or not to prosecute. But the person suspected is no more or less at risk of facing a charge by this route than of doing so because some other citizen places the same or similar material before a person with authority to commence such proceedings. In the second place, although a putative accused person will not know with certainty that the matter will be referred to the Attorney-General, there is nothing to stop him from making representations to the Attorney-General in the hope of influencing that officer's decision if he anticipates that such a course is likely. Thirdly, even though his interests were potentially so adversely affected as to give rise to an entitlement to be heard by the coroner, it does not follow that his adversary should be entitled to argue to the contrary. In any event, it is not only not suggested in this case that the prosecutor wishes to make submissions directed to the issue whether or not she should form the belief, but he in fact eschews doing so.

1. Counsel for the mother of Mr Santos claimed the right to address the Coroner on the issue of reporting to the Attorney-General a belief that a crime had been committed, adverting to the Act, s52, which sets out the rights of "interested persons". Subsection (4) thereof provides:

"52 ¾ …

(4) A person who the coroner considers has a sufficient interest may appear or be represented by a barrister, or a legal practitioner, within the meaning of the Legal Profession Act 1993 or, with permission of the coroner, by any other person at an inquest, call and examine or cross-examine witnesses, and make submissions, at an inquest."

1. In Annetts v McCann (1990) 170 CLR 596 it was held that the parents of a deceased person whose death was the subject of a coronial inquiry in Western Australia had a right to be heard in opposition to any potential adverse finding in relation to themselves or to their son, but had no right to make submissions on the general subject matter of the inquest. The Coroners Act 1920 (WA), s24(1) provided that:

"At any inquest, any person who, in the opinion of the Coroner, has a sufficient interest in the subject or result of the inquest ¾

(a)       may attend personally or by counsel; and

(b)       may examine and cross-examine witnesses

… "

It did not expressly give a right to make submissions as the Act does. In the joint judgment of Mason CJ, Deane and McHugh JJ, their Honours pointed out, at 601, that the issues in respect of which findings adverse to the parents may possibly be made "can be isolated and, once isolated, counsel for the [parents] is not entitled to address the coroner on matters which are not relevant to those issues". Further they said:

"Their [the parents'] legal entitlement is confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased."  (Ibid)

1. The High Court held that the omission of a right to address in s24 of the Western Australian Act did not exclude the rule of natural justice which would afford a person potentially adversely affected by a particular finding from addressing on that issue. The decision does not directly support the proposition that the right to make submissions given by the Act, s52(4) must be similarly confined. Nevertheless, that right, in common with the right to call and examine or cross-examine witnesses is, in my view, circumscribed by the sufficiency of the interest of the person seeking to exercise it. It was claimed by the appellants in Annetts v McCann (supra) that they had a sufficient interest in any findings of the coroner and in his power to commit for trial to justify their making submissions on any of those matters, but as Brennan J said at 610:

"… the valid exercise of the coronial power to make findings and to express opinions in a rider to the findings does not require a coroner to allow any person who is entitled to attend an inquest and to examine and cross-examine witnesses to address him on matters unconnected with any contemplated unfavourable finding which is adverse to that person's interests.  Counsel's claim to be entitled to address on any aspect of the inquest was too wide … ."

While respecting the concern of the mother of one of the deceased that proper consideration be given to any material from which a Crown Law officer could be satisfied that there is evidence against a person sufficient to put him on his trial or to raise a strong or probable presumption of his guilt (Criminal Code, s310), it is my opinion that she cannot be said to have an interest in the formation of a belief by the Coroner which would require him or her to report it to the Attorney-General sufficient to justify the making in public of submissions aimed at persuading the Coroner to form that belief. There is, of course, no reason why representations cannot be made by her to the prosecuting authorities urging the filing of an indictment.

1. In my view, the submissions of counsel in their addresses to the Coroner should be confined to the matters relevant to the factual findings which she is required to make and should not address the issue of any belief which she might form as to the commission of a crime committed in connection with a death which she has been investigating. Accordingly, a Writ of Prohibition will issue to the Coroner prohibiting her from giving effect to her ruling that she would hear submissions as to her forming a belief for the purposes of the Act, s30(3) that any person has or may have committed an indictable offence in connection with the death of Laurence Colin Santos and prohibiting her from proceeding further with the inquest into the death of the said Laurence Colin Santos otherwise than according to law.