Re Zapelli; Attorney General for the State of Western Australia

[2000] WASC 183

RE ZAPPELLI; THE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA [2000] WASC 183

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 183
Case No:	CIV:1722/2000	Heard:	12 JULY 2000
Coram:	HASLUCK J	Delivered:	12/07/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Inquisition of former inquest quashed and new inquest ordered
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Parties:	THE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Catchwords:	Coroners Act 1920 Application to quash the inquisition of earlier inquest Application for another inquest on grounds that it is necessary in the interests of justice Sufficient that there is a possibility of a different verdict Community interest and interest of relatives of deceased considered New evidence in respect of unresolved murder Confession by former suspect
Legislation:	Coroners Act 1920, s 14 Coroners Act 1996, s 62
Case References:	Attorney General & Ors v McCann, unreported; FCt SCt of WA; Library No 940186; 11 April 1994 Bilbao v Farquhar (1978) 1 NSWLR 528 Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601 In re Rapier [1988] 1 QB 26 In the Matter of an Inquest into the Death of Russell by McGuire, unreported; SCt of WA; Library No 980630; 30 October 1998 R v Cardiff City Coroner, ex parte Thomas [1970] WLR 1475 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE ZAPPELLI; THE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA [2000] WASC 183 CORAM : HASLUCK J HEARD : 12 JULY 2000 DELIVERED : 12 JULY 2000 FILE NO/S : CIV 1722 of 2000 MATTER : Section 14 of the Coroners Act 1920

and

Inquest into the death of ANNE CECILLE ZAPPELLI

THE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA

Applicant

Catchwords:

Coroners Act 1920 - Application to quash the inquisition of earlier inquest - Application for another inquest on grounds that it is necessary in the interests of justice - Sufficient that there is a possibility of a different verdict - Community interest and interest of relatives of deceased considered - New evidence in respect of unresolved murder - Confession by former suspect

Legislation:

Coroners Act 1920, s 14

Coroners Act 1996, s 62

(Page 2)

Result:

Inquisition of former inquest quashed and new inquest ordered

Representation:

Counsel:

Applicant : Ms C F Jenkins

Solicitors:

Applicant : State Crown Solicitor

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

Attorney General & Ors v McCann, unreported; FCt SCt of WA; Library No 940186; 11 April 1994
Bilbao v Farquhar (1978) 1 NSWLR 528
Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601
In re Rapier [1988] 1 QB 26
In the Matter of an Inquest into the Death of Russell by McGuire, unreported; SCt of WA; Library No 980630; 30 October 1998
R v Cardiff City Coroner, ex parte Thomas [1970] 1 WLR 1475

Case(s) also cited:

Nil

(Page 3)

1 HASLUCK J: This is an application brought pursuant to s 14 of the Coroners Act 1920 as amended for orders that (1) the inquisition of the inquest into the death of Anne Cecille Zappelli on 4 June 1970 be quashed; (2) an inquest be held into the death of Anne Cecille Zappelli; and (3) the inquest be held by the State coroner.

2 The ground of the application is that it is necessary or desirable in the interests of justice that another inquest should be held because there is new evidence which may result in findings different from those in the 1970 inquest.

3 I pause to note that the Coroners Act 1920 has now been superseded by the Coroners Act 1996. Nonetheless, the latter Act contains a savings provision in s 62 in these terms:

"The Coroners Act 1920 as in force immediately before the commencement of this Act continues to apply to deaths and fires reported to a coroner before the commencement of this Act."

4 Parker J had occasion to consider the effect of this provision in an unreported decision In the Matter of an Inquest into the Death of Russell by McGuire, unreported; SCt of WA; Library No 980630; 30 October 1998. His Honour concluded that s 14 of the Coroners Act 1920 is the only provision pursuant to which the Supreme Court may entertain an application to quash an inquest in respect of a death reported to a coroner before the Coroners Act 1996 took effect on 7 April 1997.

5 Accordingly, in the circumstances of the present case, where it is apparent from the affidavits before me that the death took place on 24 September 1969 and was reported to the coroner prior to the inquest held on 4 June 1970, it follows that I must apply the provisions of s 14 of the Coroners Act 1920.

6 Section 14 provides (omitting the inessential parts for present purposes) that where the Supreme Court or a Judge upon application made by or under the authority of the Attorney General is satisfied that where an inquest has been held by a coroner that by reason of insufficiency of inquiry or otherwise it is necessary or desirable, in the interests of justice, that another inquest should be held the court or Judge may quash the inquisition on that inquest. Further, the court or Judge may order that such inquest shall be held either by the said coroner or any other coroner; and the coroner ordered to hold the inquest shall for that purpose have the same powers and jurisdiction as and be deemed to be the said coroner.

(Page 4)

7 I note in the present case that, as required by s 14 of the Coroners Act 1920, the application is made under the authority of the Attorney General. I note also from the materials before me that the coroner who conducted the inquest previously held, Kenneth Alexander Philp, is now deceased. The present State coroner, Alistair Neil Hope, has filed a notice that he does not wish to be heard in regard to this application and will abide the decision of the court. The relatives of the deceased are aware of and support the application.

8 Against this background, I do not see a need for any other party to be served or represented before me as various safeguards will be in place if a further inquest is held. It follows that my reasons for decision are based essentially on the affidavits filed in support of the application and upon submissions made by counsel on behalf of the Attorney General.

9 The affidavit of Glen Colin Spivey sworn 21 June 2000 as manager of the Coroner's Court of Western Australia exhibited a copy of the finding made by Mr Philp on 4 June 1970.

10 The affidavit of Richard Martin Lane sworn 21 June 2000 as a Police Superintendent attached to the internal investigation unit of the WA Police Service sets out details of inquiries made in the 30 years that have elapsed since the inquest previously held by Mr Philp. The affidavit of the deceased's sister Rhonda Lee Zappelli sworn 21 June 2000 affirms that she and other members of her family are keen to have the previous finding quashed so that the details of the police inquiries that have taken place subsequently can be assessed.

11 The reasoning in Attorney General & Ors v McCann, unreported; FCt SCt of WA; Library No 940186; 11 April 1994 identifies relevant criteria applicable to an application of this kind. 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. Also see R v Cardiff City Coroner, ex parte Thomas[1970] 1WLR 1475,In re Rapier [1988] 1 QB 26, and Bilbao v Farquhar(1978)1 NSWLR 528 per Moffitt J 540.

12 These cases also establish that in considering whether it is desirable to hold a new inquest 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

(Page 5)

thoroughly evaluated are matters that should be taken into account. Also see Jervis On Coroners, 11th ed, at 346.

13 Let me apply these principles and the language of the statutory provision to the circumstances of the present case.

14 It is apparent from the materials brought before me that Ms Zappelli was murdered. The coroner who conducted the inquest into her death was led to believe that two individuals who were questioned soon after the murder had denied being involved in the death of Ms Zappelli and that inquiries had ruled them out as suspects. The finding made at the previous inquest on 4 June 1970 by Mr Philp was in these terms:

"I find that the deceased Anne Cecille Zappelli came to her death approximately at midnight on 22nd/23rd day of September in a bush area located south of Bayly Street and west of Rose Street, Geraldton from asphyxia due to strangulation inflicted by a person unknown."

15 It is against this background that I must review the evidentiary materials and submissions made by counsel for the Attorney General in order to determine whether it is necessary or desirable in the interests of justice that the former findings should be quashed and another inquest be held. I note that the words in s 14 of the Coroners Act 1920 allowing for another inquest "in the interests of justice" are words of the widest possible reference: Herron v Attorney-General for New South Wales(1987) 8 NSWLR 601 per Kirby J at 613A.

16 The decided cases also suggest that where there is new evidence which may result in findings different from those in the original inquest then it is necessary or desirable in the interests of justice that a new inquest be held. This is apparent from McCann's case (supra) and In re Rapier (supra).

17 It is clear from the evidentiary materials that the evidence against one person under notice in 1970 as a suspect was not strong. It is apparent from the materials that there was also some consideration at that time of the position of the two individuals I mentioned earlier as having been questioned soon after the murder, but that aspect of the matter did not influence the outcome of the coroner's finding. The evidentiary materials before me show that ultimately the coroner was unable to determine who killed Ms Zappelli. Thus, as counsel for the Attorney General contends in her written submissions, a particularly shocking murder has remained unsolved for over 30 years.

(Page 6)

18 It is apparent from the affidavit of Police Superintendent Lane that the police inquiries continued. Prior to his death in 1988, one of the two individuals I mentioned earlier confessed that he and the other man had been involved in the death of Ms Zappelli. Other witnesses who in 1970 had provided exculpatory evidence for these two individuals have altered their evidence to the extent that arguably they no longer provide the same level of support. There is additional evidence gathered by the police that a coroner at a new inquest may think warrants further and more detailed examination.

19 Counsel for the Attorney General acknowledges that there are inconsistencies in some of the evidence relied upon in support of this application. However, balanced against this is the confession I mentioned a moment ago which was witnessed by an independent person and is thought to be a very important piece of evidence. This confession was not available to the coroner at the 1970 inquest, with the result that there was no examination on oath of witnesses who might have given evidence regarding the movements of the two individuals in question on the night of Ms Zappelli's death.

20 Whether the evidence presented at a new inquest would confirm or refute the confession is not for this court to decide. In my view, having regard to the previously decided cases, it is enough for present purposes if the new evidence may result in different findings. It seems to me that the confession and the other evidence gathered since 1970 may result in a different finding to that delivered in 1970, and it is therefore in the interests of justice that the coroner fully examines this matter before memories fade and witnesses die or cannot be located.

21 Counsel for the Attorney General puts it this way: a new inquest would be the last opportunity to fully expose all the evidence relating to Ms Zappelli's death and to have all the relevant witnesses examined on oath, save for the author of the confession who died some years ago. I also take account of the fact that the close relatives of Ms Zappelli fully support this application. They are keen to have the previous finding quashed so that the details of the police inquiries that have taken place subsequently can be assessed.

22 Against this background, and for these reasons, I will allow the application on the grounds specified in the application. It follows that I will now make orders as asked pursuant to s 14 of the Coroners Act 1920; that is to say, (1) the inquisition of the inquest into the Anne Cecille

(Page 7)

Zappelli on 4 June 1970 be quashed, (2) an inquest be held into the death of Anne Cecille Zappelli, and (3) the inquest be held by the State coroner.

23 I accept in the light of exchanges with counsel for the Attorney General, that some restrictions should be imposed upon access to the evidentiary materials on the court file. A further inquest will be conducted according to the normal safeguards which are there to make sure that the interests of any person interested in the matter are properly regarded. The focus will now be upon the inquest conducted by the coroner. The materials lodged in support of this application should be subject to a suppression order to some degree so that the names and addresses of parties with an interest in the matter are not released as a consequence of access to affidavits on the court file. That will be a matter for the coroner to give attention to when the matter comes before him pursuant to these orders.

24 For these reasons, I will make a further order that the names and addresses of all prospective witnesses and any other information likely to identify them or their present whereabouts be suppressed, together with the information and details on the following pages of the affidavit of Richard Martin Lane sworn 21 June 1000, namely, pages 273 to 275 inclusive and 460 to 461 inclusive. This suppression order is to be construed as a restriction upon the use to be made of documents and evidentiary materials on the Supreme Court file.