Re Inquest Into The Death of Romuald Todd Zak; Ex parte Zak

[2006] WASC 186

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	RE INQUEST INTO THE DEATH OF ROMUALD TODD ZAK; EX PARTE ZAK [2006] WASC 186

CORAM	: MURRAY J
HEARD	: 15 AUGUST 2006
DELIVERED	: 15 AUGUST 2006
PUBLISHED	: 25 AUGUST 2006
FILE NO/S	:  CIV 1452 of 2006

EX PARTE

DANUTE ZAK

Applicant

Catchwords:

Coronial inquest - Application to declare findings void and to reopen inquest -

Grounds discussed - Approach to be taken by Court

Legislation:

Coroners Act 1996 (WA), s 52

Result:

Certain findings declared void Order made to reopen inquest

[2006] WASC 186

Category: A

Representation:

Counsel:

Applicant	:	Mr J G Staude
Amicus Curiae	:	Mr B P King for the Hon Attorney General

Solicitors:

Applicant	:	Bradley & Bayly
Amicus Curiae	:	State Solicitor

Case(s) referred to in judgment(s):

Anderson v Blashki [1993] 2 VR 89

Attorney General v McCann, unreported; FCt SCt of WA; Library No 940186;

11 April 1994

Chief Commissioner of Police v Hallenstein [1996] 2 VR 1

Re Zappelli; The Attorney General for the State of Western Australia [2000]

WASC 183

Case(s) also cited:

Davis (Dec), In re [1968] 1 QB 72
Rapier (Dec), In re [1988] QB 26

[2006] WASC 186

MURRAY J

1. MURRAY J: In April 1997 the deceased, then aged 24, was admitted to Graylands Hospital. He was provisionally diagnosed as suffering from a schizoaffective disorder and a diagnosis of psychotic depression was also made. He mentioned on a number of occasions that he was considering suicide. He had attempted suicide about a year before his admission to hospital, since when he had been receiving treatment both as a patient in Graylands Hospital and elsewhere. He was transferred to a closed ward and he was last seen by nursing staff at about 1.30 pm on 21 May 1997.

2              Later, when he could not be found, a search was made for him,

without success. His body was found by a gardener at about 9.30 am on 27 May 1997 in the grounds of the hospital near the Frankland Centre, a special secure unit.

3              Shortly before the deceased's death, the Coroners Act 1996 (WA) had come into operation. It was proclaimed to do so as from 7 April 1997. Under s 22(1)(a), an inquest was required to be held because the deceased was, immediately before his death, a "person held in care". That term is defined in s 3 to include a person who is an involuntary patient within the meaning of the Mental Health Act 1996 (WA). I understand that was the situation of the deceased after he was returned to Graylands Hospital.

4              Under s 25(1) the Coroner was required to find, if possible, not only

the identity of the defendant and the particulars needed to register the death, but how the death occurred and the cause of death. It is with those matters that the present application is concerned. In addition, under s 25(1):

"Where the death is of a person held in care, a Coroner must comment on the quality of the supervision, treatment and care of the person while in that care."

5              After investigation, the inquest was held on 12 August 1998. A

Sergeant of police assisted the Coroner and Graylands Hospital was represented by counsel. The transcript is before me in evidence. It seems to me that, not surprisingly, attention was particularly focused on the need for the Coroner to make the comment provided for in s 25(3). The gardener who found the deceased was called, as was the inquiry officer who gave evidence of his finding of the deceased, in situ, the taking of photographs and the presentation of his report. Oral evidence was also given by the security manager of Graylands Hospital, and a number of members of the nursing staff who had had contact with the deceased at

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MURRAY J

various times, as to the circumstances of his care and treatment immediately before he absconded from the hospital. A consultant psychiatrist, who had had his treatment, and a psychiatric registrar who had been similarly involved with the deceased, were also called.

6              Otherwise, the evidence consisted of the receipt of various reports

and statements. The pathologist, Dr Cadden, was not called. His post-mortem report was presented to the Coroner. The report recorded Dr Cadden's attendance at the scene where the body was found on 29 May 1997. The report presents the findings briefly and then in more detail. In summary, they were that the doctor found that:

"Decomposition with putrefaction change was readily evident. A ligature and ligature marking was present about the neck. The circumstances and findings are in keeping with death on account of ligature compression of neck (hanging)."

In addition, the doctor found pulmonary congestion, but no evidence of injury before the death.

7              Mr and Mrs Zak, the parents of the deceased, were present at the

inquest, but neither appears to have been called to give evidence. They were not represented. Mrs Zak makes the present application pursuant to s 52 of the Act. Any person has standing to apply under that section for an order that some or all of the findings of an inquest are void. If the Court makes such a declaration it may order the State Coroner to hold a new inquest, or direct a different coroner to do so, or to reopen, or direct another coroner to reopen, the inquest and re-examine any finding.

1. The terms of s 52(3) are important. They are as follows:

"The Supreme Court may only make an order if it is satisfied
that -

(a)	it is necessary or desirable because of fraud, consideration of evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry;
(b)	there is a mistake in the record of the findings;
(c)	it is desirable because of new facts or evidence; or
(d)	the findings are against the evidence or the weight of the evidence."

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MURRAY J

9              In this case, the applicant relies upon the submission that the

jurisdiction of the Court would fall to be exercised under par (3)(a) on the ground that an order declaring void some of the findings was necessary or desirable on or because of consideration of the evidence, and under par (3)(c) on the ground that an order was rendered desirable because of new facts or evidence.

10             At the conclusion of the hearing, the Coroner reserved his decision

on the inquest and on 21 August 1998 published his findings as required by the Act, s 26, in the form of a record of the investigation. The record concludes:

"There is no evidence before me that suggests that the deceased received other than adequate care, supervision and treatment whilst at Graylands Hospital. I find that Mr Zak hanged himself in the grounds of Graylands Hospital between 1330 hours on 21 May 1997 and 0930 hours on 27 May 1997 whilst in a disturbed state of mind. I find that death arose by way of suicide."

11             The challenge made by the present application is as to the findings

how death occurred and the cause of death. There is no challenge or application to declare void the comment on the quality of the supervision, treatment and care of the deceased while a patient in Graylands Hospital, on the basis that that course is arguably open to the Court.

12             Having heard argument and read the papers, I granted the

application. I declared void the findings made by the Coroner on 21 August 1998, that the deceased had died by hanging and his death was a suicide. To allow complete flexibility in what was to follow, I did not order that a new inquest was to be held. I chose to make the order in terms of s 52(2)(b). I ordered the State Coroner to reopen or direct another coroner to reopen the inquest and to re-examine the findings which I had declared void. This was the clear thrust of the application.

13             It seems that Mrs Zak has carried the burden of a continuing

investigation into the death of her son. She had access to photographs taken at the scene and at post-mortem, together with a transcript of the inquest and other documentary exhibits. She made contact with Associate Professor Dadour and Mr Napper of the Centre for Forensic Science at the University of Western Australia. They have provided reports, and I was provided also with a powerpoint photographic presentation produced by Mr Napper. It presents the photographic evidence, upon which his report

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MURRAY J

relies, with much greater clarity than was otherwise available in the hard
copy annexures to his report.

14             Associate Professor Dadour provides a report effectively as a

forensic entomologist. Using the photographic evidence, he estimates that the deceased was in the place where he was found for a minimum of 24 hours, but no longer than 48 hours after his death to the time when the photographs were taken.

15             Mr Napper retired from senior positions in the Police Services of the

United Kingdom and Australia to take up his present position. His report is wide-ranging. It is the report of an investigator concerned with various aspects of the depictions in the photographs which cause him concern. There is no need for me to discuss his report in detail, but it includes the following concerns. There appears to him to be little evidence of the decomposition and putrefaction reported by Dr Cadden. He sees various unexplained bruises on the torso and head of the deceased. He finds the conclusion that the deceased hanged himself difficult to understand, having regard to the final position of the body and the tree against which it was found. He doubts whether the pathology supports the conclusion of hanging, and he cannot rule out, he says, strangulation by another, the scene then being staged to give the appearance of a death by suicide.

16             A similar report with wide-ranging concerns of this kind was

obtained from a Detective Chief Superintendent Cook of the Metropolitan Police Service Serious Crime Group, New Scotland Yard, London. He also questions whether the evidence presented to him depicting the deceased in the place where he was found is consistent with death by hanging, and he agrees that the face of the deceased "would appear to have been subjected to some blunt trauma". He raises other matters of concern.

17             A report was also obtained from a Detective Sergeant McDonald of

the Sheriff or Coroner's Office of Placer County in California. This reporter boldly expresses the view, on the basis of what he describes as the "limited or incomplete investigative records provided" that the deceased was subjected to trauma before his death, re-dressed after that assault or death, the ligature was fixed and he was moved to the position where he was found at which time, he agrees, the deceased was not in an advanced state of decomposition. He had been there, Detective Sergeant McDonald suggests, no longer than two days.

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MURRAY J

18             There is evidence of a tree limb which was originally just above the

torso of the deceased having been removed by the use of a chainsaw. Detective Sergeant McDonald expresses the view that it must have been removed prior to the deceased being placed in the position where he was found. Some red twine was found attached to a higher tree limb. Detective Sergeant McDonald says it has no obvious connection to the death of the deceased.

19             Finally, a report has been obtained from a Professor Hennenberg. He

is a biological anthropologist and anatomist. He holds a chair in anthropological and comparative anatomy and is the head of the Department of Anatomical Sciences in the Medical School at the University of Adelaide. He also viewed the photographs of the deceased in the place where he was found, and those taken at post-mortem. After more detailed discussion of the various matters which struck the Professor as being of concern, he suggests that there were indications of:

" … significant struggle preceding death and serious head injuries that could lead to the death of Mr Zak. Therefore, there are no grounds for suspicion of suicide while evidence of physical abuse possibly leading to homicide or murder is substantial. Since there is no evidence of struggle under the tree where the deceased has been found, the injuries had to be inflicted in some other location and the body moved to the place it was found in."

20             The previous Act, the Coroners Act 1920 (WA), s 14, was in terms which were quite different from s 52 of the 1996 Act. Section 14 of the 1920 Act was inherited from the UK. Paragraph (b) allowed the Supreme Court to make its order, particularly to "quash the inquisition" on the inquest:

"Where an inquest has been held by a coroner, that by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, or otherwise it is necessary or desirable, in the interests of justice, that another inquest should be held;"

21 The authorities upon the former s 14 were considered by Hasluck J in

Re Zappelli; The Attorney General for the State of Western Australia [2000] WASC 183. His Honour accepted that the relevant criteria to decide an application under s 14 were as follows, at [11] and [12]:

[2006] WASC 186

MURRAY J

"There is no requirement that a different verdict will probably be arrived at if a fresh or second inquest is held. It is sufficient if there is a possibility that the result of a second inquest will be different from the first. It is not necessary that the evidence relied upon be 'fresh' in the sense that such a term is used in deciding appeals in a traditional way. … economic, social and humanitarian factors may be taken into account. The interest of the relatives of the deceased and the community in having the circumstances of a death fully exposed and thoroughly evaluated are matters that should be taken into account."

22 Section 52 of the 1996 Act appears to be taken directly, word for

word, from s 59 of the Coroners' Act 1985 (Vic). My attention was drawn
to two cases decided upon that legislation.

1. In Anderson v Blashki [1993] 2 VR 89, Gobbo J, at 92, said:

   "Section 59 enables findings to be declared void if the Court is satisfied that it is necessary or desirable to do so because of consideration of evidence. What does consideration of evidence mean? It cannot mean that a finding can be set aside because evidence was considered by the Coroner. If it means, as one assumes, possible avoidance because of the way in which the Coroner considered evidence, that still leaves the matter in an extremely ambiguous light. Doing the best I can with this unclear, somewhat incomprehensible phrase, I conclude that it must mean by reason of some error of law or misdirection or error of fact."

   Gobbo J went on to express the view that subs (3)(d) would require the Court to consider the whole of the evidence given before the Coroner to determine whether the findings were against the weight of the evidence, and it is evident that his Honour took the view that the phrase "consideration of evidence" referred to a consideration given to the evidence before him or her by the Coroner.

24             The decision of Hedigan J in Chief Commissioner of Police v Hallenstein [1996] 2 VR 1 was cited to me. At 12, his Honour cited the passage from Anderson v Blashki, to which I have referred above, before continuing at 12-13:

"It seems to me that if the court was satisfied that it was necessary or desirable, because of the way in which the evidence was considered, that a finding ought to be declared

[2006] WASC 186

MURRAY J

void, the difference between that conclusion and the conclusion that a finding is against the evidence and the weight of the evidence is more apparent than real.

Notwithstanding that it is not generally desirable that variance in interpretation ought to be indulged in unless necessary, I would go further than Gobbo J because it seems to me that the language referred to empowers the court, having considered the relevant evidence, to set aside a finding if it concludes that it is necessary or desirable to set it aside, based on that consideration."

His Honour went on to observe that, viewed in those terms, the section reposed a very wide discretion in the Supreme Court and, with respect, I am comfortable with that interpretation. I note that in speaking about "the evidence" it is the evidence before the Coroner to which his Honour refers, but on one point his Honour speaks of the way in which that evidence was considered by the Coroner, whereas later he refers to the consideration of the evidence by the Court.

25             Attorney General v McCann, unreported; FCt SCt of WA; Library No 940186; 11 April 1994, is a decision of the Full Court concerned with s 14 of the 1920 Act. The application was grounded on alleged insufficiency of inquiry or that it was otherwise necessary or desirable in the interests of justice that another inquest should be held. The case concerned new evidence or at least evidence which was additional to that which was before the coroner. The Court held that it was sufficient if it was possible, in the light of the whole of the evidence now available, that there might be a different verdict. There must be something more than mere speculation, but it is not necessary for this Court to itself find the facts if the "evidence" is capable of acceptance.

1. Of course, in that regard one should not overlook the fact that, under s 41 of the 1996 Act:

   "A coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner a coroner reasonably thinks fit."

27             Reference to the Second Reading Speech of the Hon Cheryl

Edwardes, the Attorney General of the day, delivered in the Legislative Assembly on 22 June 1995, makes it clear that the 1996 Act was intended to address a number of very important deficiencies in the Act of 1920, but there was, in that speech, no reference to s 52, or any discussion of the

[2006] WASC 186

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reason why it may have been thought to be desirable to move from the former s 14 to adopt the equivalent provision of the Victorian Act, despite the criticism of the section by the Supreme Court in that State.

28 In my view, the proper interpretation of s 52(3) is firstly that it is the

"findings" of the inquest which may be challenged by the application. In my opinion, those are the findings referred to in s 25(1) of the Act, distinguished from mere comment on matters not central to the Coroner's function.

29             I think the discretion to order that a new inquest be held or to reopen

an inquest is a wide one, but it is confined, because the discretion may only be exercised if the Court is satisfied that the matter can be brought under some provision of s 52(3). Putting to one side the question of a formal mistake in the record, the width of the discretion is made apparent by the use of the word "desirable". Given that the Coroner necessarily now will be investigating a death, it will be necessary or desirable to set aside findings, having regard to the public interest in the completeness of the investigation and inquest, and having regard to the recognised private interests in achieving that result.

30 Section 52(3)(a) and (b) are provisions which refer to the evidence

and proceedings before the Coroner. It is the adequacy of those proceedings and that investigation with which the subsection in these paragraphs is concerned. The evidence may need to be reviewed and the task may be an onerous one. So be it. In my opinion, in this case there is no ground to suppose that the Coroner's inquiry or the consideration of the evidence before him is demonstrative of error in the findings now under challenge.

31             This is an application which, in my opinion, turns upon the new facts

or evidence which have now been brought forward. They make it desirable, having regard to the considerations to which I have referred, that I should make the order I did, declaring the findings as to the manner and cause of death to be void. Paragraph (3)(c) refers to new facts or evidence. This Court might find those facts, but in this case I would not do so. I have regard to the new evidence in the form of the reports and expressions of opinion to which I have referred above. I have no doubt that, having regard to s 41, they are admissible before the Coroner holding an inquest. But the matter may be resolved by further investigation, and that is why I did not order that a new inquest be held, but ordered that the inquest be reopened to re-examine the findings to which my order refers.

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32             At the moment, there is evidence in the sense of new factual material

and new opinions, which casts doubt on the findings made as to manner and cause of death and which, if accepted, would quite possibly (indeed almost certainly) lead to different findings. For those reasons I was satisfied that the findings should be set aside and the inquest reopened.