Runacres v The Coroners Court of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 03164

SEAN RUNACRES	Appellant
v
THE CORONERS COURT OF VICTORIA	Respondent
and
AUNTY DONNA NELSON	Intervenors
JAMES LEONARD (‘PERCY’) LOVETT

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October and 1 November 2023
DATE OF JUDGMENT:	11 June 2024
CASE MAY BE CITED AS:	Runacres v The Coroners Court of Victoria
MEDIUM NEUTRAL CITATION:	[2024] VSC 304

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CORONERS COURT — Inquest — Appeal on a question of law — Findings as to circumstances in which death occurred — Whether finding open — Whether coroner failed to apply Briginshaw standard to the evidence — Legal unreasonableness — Whether findings against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the findings — Role of the Coroner — Duty to make findings — No right of appeal against recommendations or comments — Statutory finding distinguished from consideration of evidence before the Coroner — Coroners findings upheld — Coroners Act 2008 (Vic) ss 4, 14, 15, 57, 62, 67, 72, 83, 87 — Briginshaw v Briginshaw (1938) 60 CLR 336, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Minister for Immigration v Eden (2016) 240 FCR 158.

PRACTICE AND PROCEDURE — Application to intervene in appeal — Interested parties before the Coroner — Leave granted in accordance with order 9 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Bauer Media Pty Ltd v Wilson [2018] VSCA 68 considerations applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Winneke KC Ms B Myers	Kennedys Law
For the Respondent	Mr R Ajzensztat	Coroners Court of Victoria (In‑house Legal Service)
For the Intervenors	Ms S Gold Ms S Wallace	Robinson Gill Lawyers Victorian Aboriginal Legal Service

TABLE OF CONTENTS

INTRODUCTION

APPEAL AGAINST A CORONER’S FINDINGS

The task of a coroner
Standing and subject matter of an appeal
The nature of an appeal
Relief

THE RESPONDENT PARTIES

Coroners Court of Victoria
Intervenors

BACKGROUND AND SCOPE OF THE CORONER’S REPORT

Scope of the Inquest
Interested parties and witnesses
Draft Findings
Runacres’ Response to the Draft Findings
Revisions made in response to Runacres’ Submissions to the Coroner

THE CORONER’S FINDINGS

Finding at [528] of the Coroner’s Report
Finding at [520] of the Coroner’s Report
Finding at [541] of the Coroner’s Report

THE GROUNDS OF APPEAL

Ground 1
Ground 2
Ground 3
Ground 4
Ground 5
Ground 6

SUBMISSIONS

Appellant’s submissions
Intervenors’ submissions

LEGAL PRINCIPLES TO BE APPLIED TO THE EVIDENCE

Briginshaw standard
Legal unreasonableness

CORONER’S ANALYSIS

Coroner’s approach to making findings and comments
Findings as to circumstances of death
Standard of proof
Adverse comments about professionals

Coroner’s ultimate findings
Assessment and care at DPFC
Reception medical assessment

GROUNDS 1 to 3: PHYSICAL EXAMINATION

What physical examinations were required to be undertaken?
What physical examinations were recorded as having been undertaken?
Ground 1: Did a physical examination take place in HC2?
CCTV footage evidence
Coroner’s analysis

Grounds 2 and 3: Did the physical examinations take place elsewhere?
CCTV footage evidence
Conflict of evidence
Accuracy of Dr Runacres’ medical notes
Conflict of evidence between RN Hills and Dr Runacres

Conflict of evidence regarding Veronica’s clinical presentation
Internal inconsistencies in RN Hills’ evidence
Inconsistencies regarding RN Hills’ stated degree of concern for Veronica
RN Hills’ motivation to negatively portray Dr Runacres
Differences between RN Hills’ draft and signed statement
RN Hills’ missing notes and the purported disadvantage to other parties
Dr Runacres’ reliability as a witness

Coroner’s findings
Veronica’s clinical presentation at the time of her RMA
The decision to not transfer Veronica to hospital
Dr Runacres’ treatment and care of Veronica
Recording of the physical assessment notes in Veronica’s JCare file

Conclusion as to Grounds 2 and 3

GROUNDS 4 AND 5: RECORDING VERONICA’S WEIGHT

Record of Veronica’s weight in the MAF
Evidence of Veronica’s weight at the time of her passing
Other evidence regarding Veronica’s weight
Conclusion as to Grounds 4 and 5

GROUND 6: SETTING IN MOTION A ‘CHAIN OF EVENTS’

Conduct of Veronica’s RMA
Does [541] amount to a finding?

CONCLUSION

HER HONOUR:

INTRODUCTION

On 30 January 2023, Coroner Simon McGregor (the ‘Coroner’) published his findings into the death with inquest into the passing of Veronica Marie Nelson (‘Coroner’s Report’ or ‘Report’).[1]
[1]Inquest into the Passing of Veronica Nelson (Amended pursuant to Section 76 of the Coroners Act 2008 on 24 August 2023), 30 January 2023 (Proceeding COR 2020 0021, Coroners Court of Victoria) exhibited in Court Book (filed 30 October 2023 in S ECI 2023 03164, Supreme Court of Victoria) (‘Court Book’), 11806.

Veronica,[2] a proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman, passed away whilst in the State’s custody on 2 January 2020 at the Dame Phyllis Frost Centre (‘DPFC’).
[2]Veronica’s family requested that the deceased be referred to by her first name and this was adopted throughout the trial of this proceeding by all parties.

The Coroner found that Veronica died of complications of withdrawal from chronic opiate use and Wilkie Syndrome in the setting of malnutrition.[3] Veronica was 37 years old at the time of her death. She had been remanded in custody at the time of her passing, having been refused bail for relatively minor, non‑violent offences.
[3]Coroner’s Report, 73 [213].

Veronica’s death constituted a ‘reportable death’ pursuant to s 4 of the Coroners Act 2008 (Vic) (‘Coroners Act’).[4]
[4]Coroners Act ss 4(1), (2)(a), (2)(c).

In accordance with s 67 of the Coroners Act, the Coroner made a large number of statutory findings across a range of matters connected with Veronica’s death, including adverse findings as to her medical assessment and care, and the underlying processes and policies relevant to her care whilst she was at DPFC. Whilst the Coroner made a number of adverse findings against the corrections and clinical staff at DPFC who dealt with Veronica,[5] he also made specific adverse findings against certain individuals, including the appellant.
[5]I note that adverse findings and comments in respect of the circumstances of Veronica’s death were not limited to the period she was in custody at DPFC.

By this appeal, the appellant, Dr Sean Runacres, seeks to quash certain adverse findings made against him by the Coroner with respect to the circumstances of Veronica’s death. The findings as to identity and medical cause of death are not disputed.

At the time of Veronica’s death, the appellant, a registered medical doctor, was employed by Correct Care Australasia (‘CCA’), the private entity which provided primary health services at DPFC. Dr Runacres conducted the initial medical assessment — referred to as the ‘reception medical assessment’ (the ‘RMA’) — of Veronica upon her arrival at DPFC on 31 December 2019. Shortly after completing this task, Dr Runacres left DPFC for the day. He had no further direct involvement with Veronica’s care. What followed was, as the Coroner found, a series of failures in Veronica’s medical care, ultimately leading to her death some 36 hours later.

APPEAL AGAINST A CORONER’S FINDINGS
The task of a coroner

Coroners are required to investigate a ‘reportable death’.[6] Veronica’s death was a ‘reportable death’ as it was unexpected, and occurred in Victoria where she was in custody.[7]
[6]Coroners Act ss 14, 15.
[7]Coroners Act ss 4(1), (2)(a), (2)(c).

Under s 67 of the Coroners Act, the task imposed on a coroner investigating a reportable death is to make findings as to:

(a) the identity of the deceased;[8]

(b) the cause of the death;[9] and

(c) the circumstances in which the death occurred.[10]

[8]Coroners Act s 67(1)(a).

[9]Coroners Act s 67(1)(b).

[10]Coroners Act s 67(1)(c).

Coroners are also empowered to:

(a) make comment on any matter connected with the death under investigation;[11] and

(b) make recommendations on any matter connected with the death.[12]

[11]Coroners Act s 67(3).

[12]Coroners Act s 72(2).

Whilst the Coroner has a mandatory obligation to make findings under s 67(1) if it is possible to do so,[13] there is no corresponding mandatory obligation on a coroner to make comments or recommendations.
[13]See Priest v West (2012) 40 VR 521, [4] (Maxwell P and Harper JA).

As noted in the Coroner’s Report,[14] the broader purpose of coronial investigations is to contribute to a reduction in the number of preventable deaths, both through investigation findings and by the making of recommendations — generally referred to as the coroner’s prevention role.
[14]See Coroner’s Report, 34 [102].

Standing and subject matter of an appeal

This appeal is brought under s 83(2) of the Coroners Act which provides that ‘an interested party may appeal against the findings of a coroner in respect of a death or fire after an inquest to the Trial Division of the Supreme Court constituted by a single judge.’

As such, the appeal is limited to the findings of the Coroner. There is no right of appeal against a coroner’s comments or recommendations made in respect of a death.

The appellant is an interested party for the purposes of the Coroners Act because the Coroner granted him leave to appear as an interested party at the Inquest under s 56 of the Coroners Act.[15]
[15]Coroner’s Report, 47 [139.7].

The nature of an appeal

Subject to s 87A of the Coroners Act, an appeal against a coroner’s findings can be brought only on a question of law.[16]
[16]Coroners Act s 87(1).

In order to succeed in an appeal under s 87 of the Coroners Act, an applicant must identify an error of law in the Coroner’s findings.

Section 87(1A) of the Coroners Act relevantly provides:

An appeal on a question of law includes an appeal on the grounds that the finding which is appealed is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the finding.

Relief

The relevant relief that may be ordered by the Supreme Court in respect of this appeal is set out in s 87(4) which provides that:

Subject to section 88, after hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the matter for re‑hearing to the Coroners Court with or without any direction in law.

By his notice of appeal,[17] orders are sought by the appellant quashing certain findings made against him by the Coroner in relation to the circumstances of Veronica’s death,[18] specifically:
[17]Notice of Appeal (filed 17 July 2023 in S ECI 2023 03164, Supreme Court of Victoria).
[18]The Coroner’s findings are set out in pages 67–290 of the Coroner’s Report and collated in Appendix B.

(a) At [528] of the findings, that the appellant did not physically examine Veronica on 31 December 2019;

(b) At [520] of the findings, that the appellant recorded Veronica’s weight inaccurately in the Medical Assessment Form (the ‘MAF’); and

(c) At [541] of the findings, that the appellant set in motion a chain of events in which Veronica’s medical treatment and care was inadequate in an ongoing way.

The appeal primarily challenges the above findings of the Coroner on the basis that:

(a) the Coroner failed to correctly apply the relevant evidentiary standard, being the Briginshaw v Briginshaw[19] standard, in weighing all available evidence; and/or

(b) the findings are wrong in law in that they are against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made them.

[19](1938) 60 CLR 336 (‘Briginshaw’).

There is a question in this appeal as to whether the matter raised in [541] of the Coroner’s Report amounts to a statutory finding which is capable of being appealed. This is dealt with at [321]–[326] below.

THE RESPONDENT PARTIES
Coroners Court of Victoria

The respondent to the appeal, the Coroners Court of Victoria (the ‘CCV’) made submissions consistent with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[20]
[20](1980) 144 CLR 13 (‘Hardiman’).

CCV’s submissions[21] identified the relevant provisions of the Coroners Act and usefully set out a roadmap to the relevant documents.[22] It did not make submissions on the merits of the appeal.
[21]Outline of Submissions on behalf of the Coroners Court of Victoria (filed 5 October 2023 in S ECI 2023 03164, Supreme Court of Victoria).
[22]The material which was before the Coroner and which might be relevant to this appeal was extensive. The affidavit of CCV’s Principal In‑House Solicitor, Ms Samantha Brown, exhibited the relevant material, which of itself ran to over 12,000 pages.

Intervenors

By summons filed 4 October 2023, an application was made to intervene in the appeal on behalf of Aunty Donna Nelson, Veronica’s mother, and James Leonard (‘Percy’) Lovett, Veronica’s longtime partner.[23] Both Aunty Donna and Mr Lovett were interested parties in the proceeding before the Coroner.[24]
[23]The Intervenors sought to make their application pursuant to r 64.10 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). Judicial Registrar Keith made orders on 4 October 2023 adjourning the application to intervene to the hearing of the appeal on 31 October 2023. The ‘other matters’ recorded that the Intervenors were to forthwith apply to intervene in the appeal by filing a summons and a supporting affidavit. The Affidavit of Ali Besiroglu (filed 4 October 2023 in S ECI 2023 03164, Supreme Court of Victoria) set out the factors relevant to the application to intervene.
[24]Coroner’s Report, 47 [139].

The application to intervene was not opposed by the appellant nor the respondent.

Applying the intervenor principles in BauerMedia Pty Ltd v Wilson,[25] I was satisfied that it was in the interests of justice to join the intervenors as parties to the appeal. I did so on the basis that they had a considerable interest in the proceedings as senior next of kin and as persons who participated fully in the Coroner’s inquest, being separately represented, cross examining witnesses and having made submissions to the Coroner specifically with respect to the appellant.
[25][2018] VSCA 68.

I was of the view that their contribution as intervenors would be useful and different from the contribution of other parties and that their participation would not unreasonably interfere with the conduct of the proceeding. Given the Hardiman position of CCV, the intervenors’ ability to act as contradictor and bring to bear a useful and constructive contribution was an important consideration.

Written and oral submissions were made on the intervenors’ behalf on the merits of the appeal.[26] The emphasis of the intervenors’ submissions was that there was no error by the Coroner in his findings, that he had correctly applied the Briginshaw test and that he had the benefit of seeing and hearing the whole of the evidence, thus allowing him to make his own assessment of the veracity and reliability of the individual witnesses.
[26]Submissions of Interveners (filed 4 October 2023 in S ECI 2023 03164, Supreme Court of Victoria); Transcript of the Proceedings (Supreme Court of Victoria, Quigley J, 31 October – 1 November 2023), 70–104 (‘Trial Transcript’).

BACKGROUND AND SCOPE OF THE CORONER’S REPORT

The procedural history to this matter, which was not contested, was set out in the affidavit of Samantha Brown, Principal In‑house Solicitor at CCV filed on behalf of the respondent.[27] Exhibit ‘SB‑1’ to her affidavit produced a bundle exhibit of the relevant documents, including the Coroner’s Report.
[27]Affidavit of Samantha Brown (filed 9 September 2023 in S ECI 2023 03164, Supreme Court of Victoria).

The documents held by CCV for the investigation and inquest are voluminous and only those parts which were deemed necessary for the purpose of this appeal were provided in the Court Book, which of itself ran to over 12,000 pages.

Scope of the Inquest

The extent of a coroner’s powers are not free ranging and must be sufficiently connected with the death being investigated. The process by which the Coroner developed and finalised the scope of the investigation included consultation with interested parties.

The scope included:[28]
[28]See Coroner’s Report, 45–6 [138].

(a) the circumstances of Veronica’s arrest and charge on 30 December 2019 by Victoria Police;

(b) the circumstances of Veronica’s remand in custody and the application for bail made on 31 December 2019, including:

(i) the operation of the Bail Act 1977 (Vic);

(ii) her appearance without legal representation; and

(iii) what Aboriginal and legal support services were offered and/or available to her at the Magistrates Court of Victoria;

(c) whether Veronica received adequate medical assessment, treatment and care while on remand at DPFC, in particular:

(i) whether there was adequate monitoring and observation of her;

(ii) why she was transferred to the Yarra Unit at DPFC;

(iii) whether there was an appropriate health management response provided to her;

(iv) whether there was an appropriate escalation of care response provided to her;

(v) whether the medical assessment, treatment and care was adequate for her as a woman with health issues including a drug dependency; and

(vi) the response of DPFC staff members immediately following the discovery of her body on 2 January 2020;

(d) the relevance of her Aboriginality, drug use and criminal antecedents to the decisions made in relation to her arrest on 30 December 2019 to her death on 2 January 2020;

(e) whether her treatment from the time of her arrest on 30 December 2019 to her death on 2 January 2020 was culturally competent;

(f) whether her death was preventable; and

(g) identification of any prevention opportunities.

Interested parties and witnesses

In the course of the investigation, the Coroner granted leave for 17 applicants (including the appellant) to appear as ‘interested parties’ in accordance with s 56 of the Coroners Act.[29]
[29]Coroner’s Report, 47–8 [139].

The Coroner heard oral evidence from 19 witnesses (including the appellant) regarding the factual circumstances surrounding Veronica’s death.[30] He also heard from five other witnesses who gave evidence speaking to the systems involved in Veronica’s treatment whilst in custody.[31]
[30]Coroner’s Report, 48–9 [142].
[31]Coroner’s Report, 49–50 [143]–[146]. These included the DPFC Governor Tracey Jones, CCA Chief Medical Officer Dr Foti Blaher, CCA Deputy CEO and Chief Nursing Officer Christine Fuller, forensic pathologist Dr Yeliena Baber and cultural expert Aunty Vickie Roach.

Section 57 of the Coroners Act permits a witness to object to giving evidence, or evidence on a particular matter, at an inquest on the grounds that the evidence may tend to prove the witness has committed an offence or is liable to a civil penalty. If the coroner determines that there are reasonable grounds for such an objection, the coroner must cause the witness to be given a certificate under s 57 of the Coroners Act. The effect of the certificate is that in any proceeding in a court[32] the evidence and any information, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against the person.[33]
[32]Or a proceeding before any person or body authorised by a law of Victoria or by consent of the parties to hear, receive and examine evidence.
[33]Coroners Act s 57(7). The privilege granted by s 57(7) does not apply to a criminal proceeding in respect of the falsity of the evidence.

The Coroner was satisfied that a certificate be granted to a number of witnesses, including the appellant.[34]
[34]Eight witnesses were granted a certificate under s 57 of the Coroners Act. See Coroner’s Report, 51–2 [150].

The inquest also received two tranches of concurrent expert evidence.[35] One tranche was relevant to medical questions and issues (the ‘Medical Conclave’)[36] and the other in relation to administration of justice issues (the ‘Administration of Justice Conclave’).[37]
[35]Coroner’s Report, 52–64 [152]–[178].
[36]The Medical Conclave comprised 13 expert witnesses, each of whom provided expert reports. See Coroner’s Report, 53–5 [157]–[158].
[37]The Administration of Justice Conclave comprised 10 expert witnesses, each of whom provided expert reports or outline of opinion. See Coroner’s Report, 55–6 [159]–[160].

The Coroner conducted a view of the reception area, medical centre and Cell 40 of the Yarra Unit at DPFC.[38] The extensive evidence before the Coroner included the court file, coronial brief, inclusive of the materials sought, obtained and received by CCV throughout the investigation and inquest, and the evidence adduced during the inquest as well as written submissions of counsel.[39]
[38]Coroner’s Report, 64–5 [179]–[181]. A plan of the locations was also part of the evidence before the Coroner and relied upon before the Court in this proceeding.
[39]Coroner’s Report, 65 [182].

Draft Findings

After the conclusion of the evidence, on 30 May 2022 CCV circulated to the interested parties the Coroner’s draft findings and recommendations (‘Draft Findings’)[40] and set a timetable for submissions in response.[41]
[40]Draft Key Findings and Recommendations, Court Book, 11198.
[41]Email from S Brown dated 30 May 2022 re Inquest into the passing of Veronica Nelson COR 20/21 - Draft Findings (including attachments), Court Book, 11197.

Dr Runacres was represented during the inquest by the legal practitioners acting for his employer, CCA, up until the time when the Draft Findings were presented to the participating parties. Leave was thereafter granted for him to be separately represented given the serious allegations made against him in the Draft Findings.

Runacres’ Response to the Draft Findings

In November 2022, written submissions were made to the Coroner on the appellant’s behalf responding to the:[42]
[42]Submissions on Behalf of Doctor Sean Runacres (An Interested Party) (filed in COR 2020 0021, dated 21 November 2022) (‘Dr Runacres’ Submissions to the Coroner’), Court Book, 11753–805. The submissions focussed on draft findings 15–17 and 22–3 insofar as they related to Dr Runacres.

(a) Draft Findings;

(b) final submissions made by Counsel Assisting dated 6 September 2022; and

(c) submissions of interested parties insofar as they related to Dr Runacres specifically and the care he provided to Veronica on 31 December 2019.

The submissions addressed, in particular, the allegations that:[43]
[43]Dr Runacres’ Submissions to the Coroner, Court Book, 11756 [10].

(a) Dr Runacres did not conduct a physical examination of Veronica but falsely recorded an entry suggesting that he did;

(b) it was not conveyed to Dr Runacres and/or that he did not reasonably believe that Veronica weighed 40.7 kg at the time he assessed her but falsely recorded an entry suggesting that was her weight; and

(c) Dr Runacres’ professional management of Veronica so far departed from what could have been expected of a medical practitioner with his training and experience that he can be found to have contributed to her death.

Revisions made in response to Runacres’ Submissions to the Coroner

As previously noted, the Coroner published his final Report containing his statutory findings and recommendations on 30 January 2023.

The ultimate findings which relate to the appellant in the Coroner’s Report are notably different to the draft versions of the findings which were set out in the Draft Findings.

In the Coroner’s Report, there is no direct allegation or finding of falsity in the medical record as to the recording of Veronica’s weight in the terms used in the Draft Findings (as set out at [43(b)] above). The relevant comparison is the finding at [520] of the Coroner’s Report.[44]
[44]This finding is also repeated at Item 20 in Appendix B of the Coroner’s Report.

Similarly, the draft finding that the appellant did not conduct a physical examination of Veronica but falsely recorded an entry suggesting he did (as set out at [43(a)] above) is not contained in the final Coroner’s Report. The relevant comparison is at [528] of the Coroner’s Report.[45]
[45]This finding is also repeated at Item 21 in Appendix B of the Coroner’s Report.

In terms of the finding that Dr Runacres’ professional management of Veronica departed from the expected professional standards such that he contributed to her death, no direct allegation of this severity is found in the Coroner’s Report. The closest finding in the Coroner’s Report is at [540], which is not a finding challenged in this appeal save by reference to the failure to physically examine Veronica which is repeated in part of the finding at [528] of the Coroner’s Report.

There is a finding at [542] of the Coroner’s Report which, whilst not specifically naming the appellant, would likely include him (and others) by reference to the timing of when the Coroner found Veronica should have been transferred to hospital. This is described as an ‘ongoing failure’ which is said to have causally contributed to her death. The finding at [542] is not a finding challenged in this appeal.

What is challenged is the Coroner’s observation at [541] (which has no equivalent finding in the Summary of Findings in Appendix B of the Coroner’s Report) that makes reference to the appellant’s ‘failure to properly utilise’ the opportunity in the RMA which ‘set in motion a chain of events in which [Veronica’s] medical treatment and care was inadequate in an ongoing way.’

THE CORONER’S FINDINGS

As noted above, the Coroner set out in Appendix B to his Report a summary of his statutory findings.

The findings challenged by the appellant are not the entirety of the adverse findings or observations made about his conduct and involvement in Veronica’s medical assessment and care.

The appellant seeks to set aside the three specific following findings found at [528], [520] and [541] of the Coroner’s Report and, if set aside, make consequential amendments to other paragraphs of the Report.

Finding at [528] of the Coroner’s Report

The first finding challenged is at [528] of the Coroner’s Report and is recorded as Item 21 in Appendix B of the Coroner’s Report:

On the basis of the evidence canvassed above, I find that a physical examination of Veronica was not conducted on 31 December 2019, although three examinations were recorded as having been undertaken in the MAF and Initial Appointment Notes by Dr Runacres.

If this finding is set aside, consequential amendments were also sought to [540] and [696] of the Coroner’s Report which are said to be dependent on it (footnotes omitted):[46]

[540] I find Dr Runacres’ medical assessment and treatment of Veronica on 31 December 2019 was inadequate. Dr Runacres failure to physically examine Veronica, plan her ongoing care and maintain accurate records are significant departures from reasonable standards of care and diligence expected in medical practice.
[…]
[696]Dr Runacres said that he did not take care to ensure that these notes were accurate because he did not believe that other staff would ever look at them. He left notes in error on Veronica’s file, often failing to update pre‑populated material. He also recorded an inaccurate weight in Veronica’s MAF and recorded physical examinations that were not performed. Some of these errors were critical in Veronica’s care – particularly the incorrect recording of her weight – as they were relied upon by Dr Brown.
[46]The first is listed as a finding at Item 22 in Appendix B. The latter is not listed in Appendix B.

Finding at [520] of the Coroner’s Report

The second finding challenged is at [520] of the Coroner’s Report and is recorded as Item 20 in Appendix B:

On the basis of Dr Baber’s[47] evidence, I find that Veronica weighed around 33kg at the time of her reception medical assessment and that the weight recorded by Dr Runacres in the MAF was inaccurate.[48]

[47]Forensic Pathologist, Dr Yeliena Baber (‘Dr Baber’) gave expert evidence about the medical cause of Veronica’s passing.

[48]Grounds 4 and 5 relate to this finding.

If this finding is set aside, a consequential amendment was also sought to the finding at [696] of the Coroner’s Report (set out at [55] above) which is said to be dependent on it.

Finding at [541] of the Coroner’s Report

The third finding sought to be challenged is at [541] of the Coroner’s Report (footnotes omitted):

Dr Runacres was the health professional responsible for identifying at reception whether Veronica was fit to be held in an unobserved cell. The reception medical assessment is to be a comprehensive health assessment and offered the best opportunity in the prison reception process for the extent of Veronica’s unwellness to be identified, recorded, treated and escalated. Dr Runacres’ failure to properly utilise this opportunity set in motion a chain of events in which her medical treatment and care was inadequate in an ongoing way.[49]

[49]Ground 6 relates to this finding.

There is no corresponding Item listed in the Summary of Findings in Appendix B which refers to this paragraph of the Coroner’s Report as a ‘finding’.

THE GROUNDS OF APPEAL

The notice of appeal raises six questions of law or alleged errors by the Coroner in his assessment of the evidence upon which he made the specific findings challenged by appellant. In particular:

(a) whether the Coroner erred in finding that it was ‘not open’ to him to reach his conclusion at [526] of the Report.[50]

(b) in reaching his findings at [528] and [520], whether the Coroner failed to apply the Briginshaw standard in weighing all available evidence, bearing in mind the gravity of that finding against the appellant and the inherent unlikelihood of the conduct found;[51] and

(c) whether the findings at [528], [520] and [541] are wrong in law in that they are ‘against the evidence and the weight of the evidence’ to the extent that no reasonable coroner could have made it.[52]

[50]Ground 1.

[51]Grounds 2 and 4.

[52]Grounds 3, 5 and 6.

Each question of law has a corresponding Ground of review.

Ground 1

Ground 1 (and the corresponding Question 1) relates to whether the Coroner erred in law in determining at [526] of the Report that it was ‘not open’ to him to find that the appellant could have conducted physical examinations of Veronica in the reception cell.

This statement at [526] of the Coroner’s Report is not identified by the notice of appeal as a ‘finding’ subject to appeal. However, it appears to be a conclusion on the evidence upon which the appealed finding at [528] is based.

The particulars alleged that:

(a) the Coroner based his determination on the appellant’s evidence;[53]
[53]Coroner’s Report, [526].

(b) the Coroner earlier found that the appellant was an unreliable witness;[54]

(c) however, the CCTV footage was capable of supporting an inference that physical examinations could have been performed in the reception medical cell; and

(d) the Coroner did not consider the other relevant evidence, including the CCTV evidence in addition to the appellant’s evidence, and so failed to weigh all available evidence prior to reaching this determination.

[54]Coroner’s Report, [495].

Ground 2

Ground 2 (and the corresponding Question 2) relates to whether, in finding the appellant did not physically examine Veronica on 31 December 2019 at [528] of the Report, the Coroner failed to apply the Briginshaw standard in weighing all available evidence, bearing in mind the gravity of the finding against the appellant and the inherent unlikelihood of the conduct found.

The particulars allege that, in addition to those matters set out under Ground 1, the finding that the appellant did not physically examine Veronica on 31 December 2019 is inherently unlikely and is not supported by evidence commensurate with the gravity of allegation. The finding was said to be based on inexact proofs, indefinite testimony and/or indirect inferences:

(a) the appellant’s notations in the JCare system (‘JCare’)[55] corroborate the fact that physical examinations were conducted as noted. That there were other inaccuracies in the JCare notes is not sufficient evidence from which to infer the entries concerning the examinations were also inaccurate;
[55]Being the Justice Health medical record which in December 2019 was an electronic record.

(b) the appellant gave clear evidence that he does not make up data recorded in medical records;[56]

(c) Nurse Stephanie Hills (‘RN Hills’) gave evidence that she could not recall any time in the 60 or 70 shifts she had worked with Dr Runacres at the DPFC that he had made entries in the form without conducting the corresponding examination;[57] and

(d) the Coroner accepted that the dispute between RN Hills and Dr Runacres was significant and ‘central’ to the findings about the appellant’s care and treatment of Veronica and his role, if any, in her passing,[58] that RN Hills’ evidence was inaccurate in several important respects,[59] and that these inaccuracies ought to have led the Coroner to view RN Hills’ evidence as inexact, and to treat it with caution, particularly given the centrality of the dispute between RN Hills and Dr Runacres to the Coroner’s ultimate findings.

[56]Coroner’s Report, [524]; Transcript of Proceedings, Inquest into the Passing of Veronica Nelson (Coroners Court of Victoria, Coroner McGregor, 26 April – 27 May 2022), 1020 (‘Inquest Transcript’).

[57]Inquest Transcript, 661, 676–77.

[58]Coroner’s Report, [443].

[59]Coroner’s Report, [477].

The particulars also allege that underpinning the challenged finding is an implicit finding that Dr Runacres falsified the notes in the JCare records in relation to physical examinations. Individually and in combination, these findings are likely to have an extremely deleterious effect upon Dr Runacres’ professional standing, reputation and employment prospects. These findings demanded evidence of such weight, cogency and clarity that were commensurate with their gravity and that the evidence was not of sufficient weight, cogency and clarity to permit the Coroner to find that the appellant did not conduct a physical examination of Veronica.

The particulars further allege that the Coroner should have but failed to consider the submission made on behalf of the appellant that no motive or reason was advanced to explain why the appellant would have failed to conduct an examination and contemporaneously falsified records to make it appear that he had done so and that the Coroner failed to give sufficient weight to the presumption of Dr Runacres’ innocence.

Ground 3

Ground 3 (and the corresponding Question 3) relates to whether the finding that the appellant did not physically examine Veronica on 31 December 2019 at [528] of the Report is wrong in law in that it is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made it.

To support this ground the appellant relied on the particulars set out in respect of Grounds 1 and 2.

Ground 4

Ground 4 (and the corresponding Question 4) relates to whether, in finding that the appellant inaccurately recorded the weight of Veronica in the MAF at [520] of the Report, the Coroner failed to apply the Briginshaw standard in weighing all available evidence, bearing in mind the gravity of the finding against the appellant and the inherent unlikelihood of the conduct found.

The particulars in support of this ground were:

(a) the Coroner accepted the evidence of RN Hills that Veronica was not weighed during the RMA and that there was no evidence that another person weighed Veronica;[60]
[60]Coroner’s Report, [519].

(b) the Coroner accepted Dr Baber’s evidence that Veronica weighed around 33 kgs at the time of her RMA;[61]
[61]Coroner’s Report, [520].

(c) accordingly, the Coroner’s finding amounts to an implicit finding that the appellant falsified the weight recorded in the MAF which is a serious adverse finding based on inexact proofs, indefinite testimony and/or indirect inferences. As against this, the following evidence supports a contrary view:

(vii) the existence of a note in the MAF supports an inference that Veronica was in fact weighed at some point before or during her RMA;

(viii) the appellant gave clear evidence that he does not make up data entered into medical records;[62]
[62]Coroner’s Report, [524].

(ix)RN Hills gave evidence that despite having worked together with Dr Runacres on over 60 or 70 shifts at DPFC, she could not recall an instance of Dr Runacres making entries in the form without having performed the corresponding examination;[63]
[63]Inquest Transcript, 661, 676–7.

(x) apart from the appellant’s notes, there was no other objective evidence before the Coroner about Veronica’s actual weight at the time of her RMA;

(xi)the Coroner did not address the evidence that Veronica might have lost 5 kg of fluid from her stomach and bladder, which Dr Baber testified was theoretically possible, though not very likely,[64] and there was no further expert evidence before the Coroner on this point;
[64]Inquest Transcript, 2079.

(xii) the evidence from RN Hills that Veronica was not weighed during the RMA is not capable of establishing the proposition that she was not weighed at any other time during her stay at DPFC;

(xiii) the CCTV evidence did not capture all of Veronica’s movements while at DPFC so could not support a conclusion that she was not weighed at any other time; and

(xiv) the Coroner accepted that the dispute between Dr Runacres and RN Hills was significant and ‘central’ to the findings about the appellant’s care and treatment of Veronica, and his role, if any, in her passing. The Coroner accepted there were inaccuracies in RN Hills’ evidence in several important respects.[65] These inaccuracies ought to have led the Coroner to view RN Hills’ evidence as inexact, and to treat it with caution, particularly given the centrality of the dispute between RN Hills and Dr Runacres to the Coroner’s ultimate findings.
[65]Coroner’s Report, [477.1], [477.2].

(d) The finding is likely to have an extremely deleterious effect upon Dr Runacres’ professional standing, reputation and employment prospects and required evidence of such weight, cogency and clarity which was commensurate to its gravity. The evidence was not of sufficient weight, cogency or clarity to permit the Coroner to find that Dr Runacres falsely recorded Veronica’s weight.

(e) The Coroner should have, but failed to consider the submission that no reason or motive was advanced to explain why the appellant would have falsely recorded Veronica’s weight.

(f) In making this finding, the Coroner did not give sufficient weight to the presumption of innocence.

Ground 5

Ground 5 (and the corresponding Question 5) relates to whether the finding that the appellant inaccurately recorded the weight of Veronica in the MAF at [520] of the Report is wrong in law in that it is against the evidence and the weight of the evidence to such an extent that no reasonable Coroner could have made it.

The appellant adopted the particulars for Ground 4 in support of Ground 5.

Ground 6

Ground 6 (and the corresponding Question 6) relates to whether the finding at [541] of the Report that the appellant set in motion a chain of event which Veronica’s medical treatment and care was inadequate in an ongoing way, is wrong in law in that it is against the evidence and the weight of the evidence to such an extent that no reasonable Coroner could have made it.

In support of this ground, the appellant argued that:

(a) the decisions and conduct of others involved in Veronica’s medical treatment and care after the RMA were made independently of the appellant’s management which was not a relevant cause of such decisions and conduct;

(b) Dr Runacres was not responsible for Veronica’s care after the RMA, was not made aware of her deterioration subsequent to her RMA and had no opportunity to provide further care in light of the change to her presentation;

(c) the Coroner’s findings at [645] of the Report in relation to the systematic failings of CCA, Corrections Victoria (‘CV’), and Justice Health and the manner in which those failings causally contributed to Veronica’s death is inconsistent with the finding that it was his care and conduct which set in motion the chain of events in which Veronica’s care and treatment was inadequate in an ongoing way; and

(d) this was a serious adverse finding which is based on inexact proofs, indefinite testimony and/or indirect inferences.

SUBMISSIONS
Appellant’s submissions

The appellant made oral and written submissions consistent with the particulars of the grounds set out above.

At trial, parts of the CCTV footage were played to the Court which showed Veronica’s arrival at DPFC, her entry into the reception cell, her moving towards a shower cubicle and emerging in a prison tracksuit, her movement towards the medical treatment rooms (in part) and footage of her in the medical holding cell.[66]
[66]Affidavit of Mia Campbell (filed 17 July 2023 in S ECI 2023 03164, Supreme Court of Victoria) (‘Affidavit of M Campbell’), Exhibit MC3 enclosing CCTV footage marked ‘CCTV C300’, ‘CCTV C318’, ‘CCTV C319’, ‘CCTV C321’.

The appellant accepted that, in order to succeed in this appeal under s 87 of the Coroners Act, an error of law in the Coroner’s findings must be identified.

It was also accepted that all coronial findings ‘must be made based on proof of relevant facts on the balance of probabilities and in determining those matters the principles enunciated in Briginshaw apply.’[67]
[67]Mortimer v Coroners Court of Victoria [2022] VSC 437, [89] citing Re State Coroner; Ex parte Minister for Health (2009) 261 ALR 152 and Briginshaw.

The appellant accepted that the Coroner may make findings that are dependent on drawing inferences. It was argued that before any inference can be accepted, it must be the more probable inference drawn from the whole of the evidence. A more probable inference must be more than an inference of equal degree of probability with other inferences so as to avoid guesswork or conjecture.[68]
[68]Lithgow City Council v Jackson [2011] HCA 36, [93]–[94] (per Crennan J).

The appellant accepted that other findings adverse to his interest were appropriate and are not challenged by him.[69] He does not, for example, challenge the more general finding of inaccurate record keeping or the more generally directed adverse findings as to the inadequacy of assessment and care, and systemic and entrenched adverse processes and attitudes towards prisoners’ care in the context of opioid addiction. He challenges the direct criticism of specific aspects of his own assessment and care of Veronica.
[69]For example, the finding that Veronica should have been transferred to hospital at Coroner’s Report, [542], [778] which is listed as Item 23 in Appendix B. See Trial Transcript, 9–10.

There are adverse observations made regarding the appellant’s assessment and care at [539] of the Coroner’s Report which states that, based on the evidence, he was satisfied that:

(a) Dr Runacres’ RMA of Veronica was not comprehensive and his records of it were inaccurate;

(b) Dr Runacres provided no plan for Veronica’s ongoing management and ought to have done so; and

(c) Veronica was so unwell at the time of her RMA and her presentation warranted transfer to hospital.

The Coroner’s finding at [540] refers to his conclusion that the appellant did not physically examine Veronica as one of the reasons why he formed the view that his medical assessment and treatment of Veronica on 31 December 2019 was inadequate. The finding that no physical examination was undertaken is found at [528] and the accuracy of recording Veronica’s weight at [520]. I have understood the challenge to [540] is only to that part which would be consequentially affected by the quashing of the finding at [528], being the reference to no physical examination being undertaken.

At [542], which is not subject to challenge, the appellant would be included in the group of CCA staff members against which adverse comments and findings are made in respect of the failure to transfer Veronica to hospital and that the ongoing failure causally contributed to her death.

At [696], which is challenged as associated with the finding at [528] insofar as it refers to notations recorded relating to physical examinations not performed and the recording of an inaccurate weight, the Coroner notes that, in the context of a finding at [700], the medical records maintained by CCA staff were incomplete and in parts inaccurate and misleading concerning Veronica’s medical history and clinical presentation whilst at DPFC between 31 December 2019 and 2 January 2020.

In respect of Dr Runacres specifically, the Coroner goes on to say at [696], noting that this paragraph is also challenged as a consequence of the challenge to the finding at [528] (footnotes omitted):[70]

Dr Runacres said that he did not take care to ensure that his notes were accurate because he did not believe that other staff would ever look at them. He left notes in error on Veronica’s file, often failing to update pre‑populated material. He also recorded an inaccurate weight in Veronica’s MAF and recorded physical examinations that were not performed. Some of these errors were critical in Veronica’s care - particularly the incorrect recording of her weight – as they were relied upon by Dr Brown.

[70]Coroner’s Report, 241.

The observations on the evidence which led to the finding by the Coroner that Veronica’s death was preventable includes commentary adverse to Dr Runacres as it is based on the evidence accepted by the Coroner that Veronica’s death or condition could have been addressed and corrected upon transfer to hospital where she would have received intravenous fluids and electrolyte replacement. The Coroner accepted that Veronica’s death was preventable, and on the balance of probabilities would have been prevented if she had been transferred to hospital at any time between her arrest and her passing.[71]
[71]Coroner’s Report, [827]–[831].

As noted above, the focus of the appellant’s submission was on the application of the Briginshaw standard to the evidence before the Coroner.

The rules of evidence do not apply to inquests.[72] The appellant submitted that that does not displace the common law requirement that ‘information on which a court or tribunal may act, however obtained, must form a proper basis for the decision.’[73] Such information can only form the proper basis for a decision if it is ‘logically probative, reliable and relevant and the parties have been given an adequate opportunity to comment on it.’[74]
[72]Coroners Act s 62.
[73]R v Deputy Industrial Industries Commissioner; Ex parte Moore [1965] 1 QB 456, 476; Wajnberg v Raynor and Melbourne and Metropolitan Board of Works [1971] VR 665, 678–9; Secretary, Department of Human Services v Sanding (2000) 36 VR 221.
[74]R v Deputy Industrial Industries Commissioner; Ex parte Moore [1965] 1 QB 456, 476; Wajnberg v Raynor and Melbourne and Metropolitan Board of Works [1971] VR 665, 678–9; Secretary, Department of Human Services v Sanding (2000) 36 VR 221.

The appellant accepted that the ultimate findings of the investigation and the inquest are quintessentially matters for the Coroner and that an error of law will not result from a finding of fact about a matter upon which reasonable minds might have differed after examining all the available evidence.[75]
[75]Thales v Australia Limited v The Coroners Court of Victoria [2011] VSC 133, [59].

Additionally, it was accepted by the appellant that the weight accorded to relevant factors in reaching an evidentiary conclusion is not ordinarily an error of law, nor is the relative weight given to various parts of the evidence.

An error based on a conclusion not reasonably open to the decision maker is a species of error specifically contemplated under s 87(1A) of the Coroners Act, which provides:

An appeal on a question of law includes an appeal on the grounds that the finding which is appealed is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the finding.

I observe that the submission about the weight and reliability of the evidence and the application of the Briginshaw standard was also submitted to the Coroner in response to the Draft Findings. I have the benefit of the detailed submissions made on Dr Runacres’ behalf to the Coroner on the Draft Findings. Given the modification made to the Draft Findings and the discussion of matters raised on the appellant’s behalf throughout the Coroner’s Report, I discern that the Coroner’s consideration of these matters has been incorporated into his reasoning recorded in the Coroner’s Report.

Intervenors’ submissions

The Intervenor’s submissions can be summarised as set out below:

(a) Dr Runacres was represented during the investigation and at the inquest by way of employer and later independently.

(b) The appeal re‑agitates matters of fact properly considered and determined by the Coroner in the first instance.

(c) Unlike this Court, the Coroner has the advantages of observing each witness give viva voce evidence, including the appellant and RN Hills and was thus best placed to assess the reliability and credibility of the witnesses who appeared and to consider the conflicting evidence.

(d) The Coroner’s findings contain extensive analysis and comparison between conflicting evidence of Dr Runacres and RN Hills.

(e) In his oral evidence, Dr Runacres steadfastly maintained he had no recollection of Veronica and prepared his statement and gave his oral evidence relying only on his notes. That concession was an important factor in which to consider the rest of his evidence, and consequently its reliability or otherwise.

(f) Dr Runacres’ reliance on his notes then and now provide a questionable evidentiary foundation.

(g) It was not in dispute, nor could it be disputed, that the notes contained multiple inaccuracies. Reference was made to the Inquest Transcript.[76]
[76]1071–2.

(h) The inaccuracies and shortcomings of Dr Runacres’ notes are compounded by the failure of Dr Runacres to note basic matters regarding Veronica’s medical history, including the recurrent vomiting and evident malnutrition.

(i) Dr Runacres ‘remarkably’ gave evidence that he did not consider the notes would be read by other medical practitioners as an excuse for his errors or the incompleteness of the notes.[77]
[77]Inquest Transcript, 982, 985.

(j) The evidence of Dr Runacres was negatively contrasted with that of RN Hills. RN Hills’ evidence was that she remembered Veronica and what occurred during Dr Runacres’ medical consultation, she was a relevant eyewitness who was present at that consultation and she did not suffer the same memory recall issues as Dr Runacres. It was submitted that this is a fundamental tool of assessing reliability. She was subject to robust cross‑examination and demonstrated that she was a reliable witness.

(k) RN Hills’ evidence before the Coroner was that she made notes after Veronica’s passing which were subsequently lost. This evidence was accepted by the Coroner.

(l) The Coroner’s assessment of RN Hills’ oral evidence was that it was ‘spontaneous and appeared to come from genuine memory and recollection’.[78] In the circumstances, based on the evidence that the Coroner saw and heard, he was entitled to come to that conclusion.
[78]Coroner’s Report, [464].

(m) With respect to Dr Runacres’ evidence, the Coroner concluded at [493]–[495]:

In fact, I find his inability to provide any evidence of independent recollection to be extremely convenient, given the competing accounts of other DPFC staff members and objective evidence indicating Veronica was very unwell at that time. His evidence on this point was uncorroborated, and at times self‑serving and implausible.
I also note, that on his own account, Dr Runacres’ evidence was wholly reconstructed from his notes (which he ultimately admitted were unreliable) and retrospectively reviewed CCTV footage (which prompted no recollection).
On the weight of the available evidence, I am satisfied that Dr Runacres was an unreliable witness. To the extent there is inconsistency, I prefer the evidence of RN Hills.

(n) The intervenors’ submissions criticised the appellant’s submissions as failing to grapple with what was said to be this essential finding, accepting the evidence of RN Hills over that of Dr Runacres. This central finding, based on the evidence, was open to the Coroner and he provided reasoning based on the evidence as to his conclusions.

(o) Further, the appellant’s submissions ignore the fact that Dr Runacres himself did not give evidence that he actually did weigh or conduct a physical examination of Veronica (or even may have done these things) otherwise than in the presence of RN Hills.

(p) The only evidence that Dr Runacres weighed Veronica or conducted any physical examination of her at all were his clinical notes, the veracity and reliability of which were reasonably rejected by the Coroner and ultimately accepted by the appellant in his evidence as unreliable.

(q) In the context of finding that the JCare notes were inaccurate, and once the Coroner accepted that RN Hills was a credible and truthful witness, it was open and logical for the Coroner to conclude that Dr Runacres’ evidence was untrustworthy and his medical treatment of Veronica inadequate.

(r) Careful analysis demonstrates the Coroner properly considered all matters and once the evidence demonstrated that the appellant’s account was predicated on clinical notes that he himself accepted were unreliable, the Coroner was entitled to reject the appellant’s evidence as unreliable. The Coroner also had other cogent, reliable evidence, primarily from RN Hills, which undermined that of Dr Runacres. In those circumstances, the Coroner was entitled to make findings that he did to the standard he did.

(s) The Court should be clear to identify that which is proper comment by the Coroner as opposed to a finding.

LEGAL PRINCIPLES TO BE APPLIED TO THE EVIDENCE
Briginshaw standard

The parties all referred to and relied on the applicability of the principles in Briginshaw. They differ as to the result that the application of what has come to be referred to as the ‘Briginshaw standard’ means to the evidence in this proceeding.

It is non‑controversial that all coronial findings must be made on proof of relevant facts on the balance of probabilities, and in determining those matters the principles enunciated in Briginshaw apply.[79]
[79]Mortimer v Coroners Court of Victoria [2022] VSC 437, [89] citing Re State Coroner; Ex parte Minister for Health (2009) 261 ALR 152 and Briginshaw.

The Coroner summarised the key facets of the Briginshaw test at [118] of his Report (footnotes omitted):

Proof of facts underpinning a finding that would, or may, have an extremely deleterious effect on a party’s character, reputation or employment prospects demand a weight of evidence commensurate with the gravity of the facts sought to be proved. Facts should not be considered to have been proven on the balance of probabilities by inexact proofs, indefinite testimony or indirect inferences. Rather, such proof should be the result of clear, cogent or strict proof in the context of a presumption of innocence. What must be given to the presumption of innocence.

The appellant noted that, at [119] and [443] of the Coroner’s Report, the Coroner acknowledged that standard and said that he had paid due regard to it in reaching adverse findings against individuals.

Notwithstanding the statement, the appellant argues that the evidence in respect of the findings at [520] and [528] of the Report[80] was ‘not sufficiently clear or cogent to enable such satisfaction under the heightened standard of proof’.[81]
[80]Being the complaint under Grounds 2 and 4.
[81]Amended Appellant’s Outline of Submissions (filed 26 September 2023 in S ECI 2023 03164, Supreme Court of Victoria), [11] 9 (‘Appellant’s Amended Submissions’).

The intervenors argued that the Coroner recognised that the Briginshaw standard of proof applied to adverse findings, including those made against the appellant, but that this did not displace the civil standard of proof, being the balance of probabilities explained by Justice Gordon in Re Day:[82]

This does it does mean that the standard of persuasion is any higher than the balance of probabilities. It does mean that the nature of the issue necessarily affects the process by which the reasonable satisfaction is reached.
[…]
The tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found. Where direct proof is not available and satisfaction of the civil standard depends on inference, “there must be something more than mere conjecture, guesswork or surmise” – there must be more than “conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture”. An inference will be no more than conjecture unless some fact is found which positively suggests, or provides a reason in the circumstances particular to the case, that a specific event happened or a specific state of affairs existed.

[82][2017] HCA 2, [15], [18] (footnotes omitted).

I am satisfied that the Coroner well understood the task of weighing the evidence that he was required to undertake. This does not mean that he must be satisfied that all the evidence be one way. In any contest of evidence there will be evidence of greater or lesser relevance, objectivity and persuasion. The Coroner had the benefit of observing all of the key witnesses, reference to the relevant documents and extensive submissions on behalf of the interested parties on the cogency and reliability of the evidence. Ultimately, the finding of facts and the statutory findings as to circumstances of death which is in issue here are matters of which he needed to be satisfied. He expressly said that he was so satisfied and that he formed the view in accordance with the Briginshaw standard where his findings adversely affected a party.

Where the Coroner drew inferences, I am of the view that those inferences were soundly based. By and large, the submission which suggested that alternatives were not considered and were open and possible, in my view, were speculative. In particular the suggestion by the appellant that the physical examination could have occurred in the reception cell in one minute and 34 seconds is itself one example of unacceptable speculation. The suggestion that Veronica could legitimately lose almost 19% of her body weight in 36 hours is another.

I return to this issue below where each of the appellant’s grounds is considered.

Legal unreasonableness

As noted above, this appeal is confined to a question of law though the findings challenged by the appellant are based on findings of fact. On one view, the basis of the appeal could be characterised as a challenge to the facts found and as a consequence there would be no appeal jurisdiction enlivened.

However, the grounds raise the question of the process by which the Coroner formed his view of the facts. Section 87(1A) of the Coroners Act provides that a question of law includes ‘an appeal on the grounds that the finding which is appealed against is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the finding’.

The amended explanatory memorandum to the bill for the Justice Legislation Miscellaneous Amendment Act 2018 (Vic) which inserted subsection (1A) to s 87 explained that the purpose for adding this new subsection was to:

clarify that an appeal on a question of law includes an appeal on the ground that a coroner’s finding is against the evidence and the weight of evidence to such an extent that no reasonable coroner could have made the finding. This wording is intended to reflect the concept of “Wednesbury unreasonableness” and does not seek to expand or otherwise alter the scope of appeal rights under Part 7 of the Coroners Act 2008. Such appeals remain limited to an appeal on a question of law.

Thus, the task for the Court on appeal is to consider the evidence before the Coroner and his conclusions and determine whether the Coroner’s findings under challenge are ‘against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the finding’. This task is not one which empowers the Court to substitute the Coroner’s findings with its own view of the evidence. That would be to stray into an impermissible merits review.[83]
[83]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [66] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [8], [12] (Allsop CJ), [58] (Griffiths J); Minister for Immigration v Eden (2016) 240 FCR 158, [59].

The explanatory material clarifies that an appeal on a question of law may be brought on grounds consistent with the principles embodied in the concept of Wednesbury unreasonableness.[84] As such, the Coroners Act suggests the bar is a high one.
[84]Being the formulation of the administrative law standard of ‘unreasonableness’ enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (‘Wednesbury’).

The earlier observations of the Wednesbury unreasonableness concept were expressed in terms that required the decision to be ‘manifestly unreasonable’,[85] one so devoid of any plausible justification that no reasonable person could have reached it. The decision would be unlawful as an unreasonable exercise of legislative power.[86] Unreasonableness can be made out, or a decision properly classified as manifestly unreasonable, because it defies comprehension, it is obvious that the decision maker acted perversely, or that there was manifest illogicality in arriving at the decision. This includes there being illogical findings or inferences of fact unsupported by probative material or logical grounds.[87] The Court will intervene where there is an absence of any foundation in fact for the fulfillment of the conditions upon which the existence of the power depends.
[85]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (per Mason J).
[86]See Li, [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Eden, [58]; Stretton, [4] (Allsop CJ), [53] (Griffiths J).
[87]East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, [183]–[184].

The contemporary principles applicable to legal unreasonableness under Australian law are those discussed by the High Court in Minister for Immigration and Citizenship v Li (‘Li’)[88] and more recently in Minister for Immigration and Border Protection v SZVFW (‘SZVFW’).[89] In Li, the High Court said that legal unreasonableness in Australia is not confined to Wednesbury unreasonableness, being a concept which encapsulates what is in effect an ‘irrational if not bizarre decision’.[90] The modern exposition of the legal unreasonableness concept distilled in Li captures a decision or conclusion ‘which lacks evident and intelligible justification.’[91] This exposition was reiterated in SZVFW.[92]
[88](2013) 249 CLR 332.
[89](2018) 264 CLR 541.
[90]Li, [68] (per Hayne, Kiefel and Bell JJ).
[91]Li, [76] (per Hayne, Kiefel and Bell JJ).
[92]SZVFW, [10] (Kiefel CJ), [82] (Nettle and Gordon JJ).

In Minister for Immigration v Eden (‘Eden’)[93] the Full Court of the Federal Court considered the relevant principles in relation to legal unreasonableness.[94] The principles were the subject of a detailed analysis in an earlier decision of that Court in Minister for Immigration and Border Protection v Stretton.[95] In Eden, the Court’s summary of the principles were set out in a few short propositions at [58]–[65] and, insofar as they can be applied to the concept of unreasonableness in s 87 of the Coroners Act, I observe that there is a clear legislative intention that in undertaking the assessment of the evidence in order to make statutory findings, a coroner must exercise the power reasonably.
[93](2016) 240 FCR 158.
[94]The relevant principles were also recently summarised by Harris J in Wilks v Psychology Board of Australia [2024] VSC 2.
[95](2016) 237 FCR 1.

The appellant has framed his grounds of review in respect of unreasonableness[96] in terms akin to the Wednesbury unreasonableness standard. This is appropriate given the test reflected in the wording of s 87(1A). However, in my view, the use of the word ‘includes’ in s 87(1A) contemplates that an appeal on a question of law brought on grounds of unreasonableness is not necessarily limited to the Wednesbury standard. As such, in this decision I have had regard to both the Wednesbury standard and the contemporary exposition in Li. However, for the reasons at [284], [315] and [325] the distinction is ultimately not material in this appeal.
[96]Grounds 3, 5 and 6.

It is important to bear in mind, as I described at [8] above, the task of the Coroner was not to find guilt or blame in a civil or criminal sense, but to make findings as to the factual circumstances of the death. I note that this task is done in a context where parties giving evidence may be subject to the privilege against incrimination provided by s 57.[97]
[97]Discussed at [36] above.

The power being exercised by the Coroner in the investigation of a reportable death is the power to make findings under s 67(1). The Coroner is also empowered to make comments and recommendations.[98] The Coroners Act provides a number of powers to aid the investigation.[99]
[98]Discussed at [10] above.
[99]These include those in ss 25, 28, 32, 33, 36, 39 and 42.

By s 62(1) of the Coroners Act, a coroner holding an inquest is not bound by the rules of evidence.[100] There are a number of other tribunals which, by their statutory mandate, are similarly not bound by the rules of evidence and may inform themselves as they see fit. The construction of s 62(1) must accord with the rules of statutory interpretation including that the starting point is the text of the provision considered in light of its context and purpose,[101] and in interpreting the relevant legislation the Coroners Act must be read as a whole.[102]
[100]Priest v West (2012) 40 VR 521, [5].
[101]SAS Trustee Corporation v Miles (2018) 265 CLR 137, [20]; Project Blue Sky Inc v Australian Broadcasting Corporation (1998) 194 CLR 355, [69]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14].
[102]Thales Australia Ltd v Coroners Court of Victoria [2011] VSC 133, [69].

CCV submitted that the context of the Coroners Act is important, as a coroner who holds an inquest into a death is required not only to make findings under s 67(1), but when investigating the death must do everything possible to enable the required findings to be made. The scope of an investigation is broad and the inquisitorial function of an inquest is an important consideration. It is not an adversarial process, the duty of the coroner being to find the cause of death and all that they can about the circumstances surrounding the death.[103]
[103]Priest v West (2012) 40 VR 521, [167]–[169] (Tate JA).

In determining whether the findings adverse to the appellant made by the Coroner were lawfully made and within power and not conclusions which are affected by legal unreasonableness, the task of the Coroner prescribed by the Coroners Act must be borne in mind and the evidentiary principles of Briginshaw seen in that context.

CORONER’S ANALYSIS
Coroner’s approach to making findings and comments

In setting out the task ahead of the Coroner, the Coroner’s Report outlined the jurisdiction and purpose of the coronial investigation, the task he identified in making findings pursuant to s 67(1) of the Coroners Act and the process engaged in setting the scope of the investigation.[104]
[104]Coroner’s Report, 33–46.

The Coroner noted that the circumstances surrounding a death can include several important categories in relation to a person’s involvement:[105]
[105]Coroner’s Report, 36 [108].

(a) courses of action that person undertook;

(b) any relevant normal practices in that person’s profession or party’s industry; and

(c) the likelihood that various courses of action, including the one taken, could have prevented the death.

The Coroner commented that questions about a person or a party’s ‘culpability’, in a context where coroners do not assign fault or blame, will necessarily be addressed in comments regarding the relationship between the person or party’s course of action and either of the latter two categories above.[106] The Coroner stressed that:[107]

coroners are not empowered to determine civil or criminal liability arising from the investigation of a reportable death, and are specifically prohibited from including a finding or comment or any statement that a person is, or may be, guilty of an offence.
[106]Coroner’s Report, 36 [109].
[107]Coroner’s Report, 37 [112] (footnote omitted). The Coroner acknowledged a coroner may include a statement relating to a notification to the Director of Public Prosecutions if they believe an indictable offence may have been committed in connection with the death, referring to ss 69(2) and 49(1) of the Coroners Act.

Findings as to circumstances of death

The Coroner said that circumstances of the death do not refer to the entire narrative culminating in the death, but rather those circumstances which are sufficiently proximate and causally relevant to the death.[108] The findings as to circumstances will necessarily include findings as to which events caused others, in what combination they played this causative role, and to what degree.
[108]Coroner’s Report, 37 [114].

He said that the standard for making a finding that matters are ‘connected with’ the death for the purposes of the power to make comments or recommendations is not the same as the standard of proximate connection required for a finding as to the circumstances of death. He referred to Thales Australia Limited v The Coroners Court (‘Thales’)[109] in which Justice Beach said there was no warrant for reading ‘connected with’ as meaning only ‘directly connected with’, and that the range of matters connected with a death, for the purpose of comments or recommendations, can be ‘diverse’.
[109][2011] VSC 133, [75]. In this decision, Beach J adopted the interpretation of Muir J in Doomadgee v Clements [2006] 2 Qd R 352, [33].

The Coroner observed that on most questions, and in relation to most matters about which he is obliged to make findings, the Medical Conclave and the Administration of Justice Conclave resolved to unanimous opinions. On a small number of matters, the Medical Conclave formed a majority view and the nature and number of any dissenting views was identified.

Of relevance are the Coroner’s comments in response to final submissions that urged the Coroner to be cautious before adopting unequivocal opinions of the Medical Conclave.[110] The Coroner said that he had to be satisfied on each of these matters to the requisite standard of proof. He said that he had considered the Medical Conclave’s evidence in the context of the material they had before them which was necessarily more limited than the evidence upon which he could make his findings. He also stated that he bore in mind that the experts did not have the benefit of assessing Veronica in person and he said he had regard to the acknowledgement by the Medical Conclave that a custodial setting created additional burdens in the provision of clinical care when formulating the findings relevant to individual CCA clinicians.
[110]Coroner’s Report, 64 [177]–[178].

Standard of proof

The Coroner acknowledged that the level at which he is required to be satisfied by the evidence before him was on the balance of probabilities in accordance with the Briginshaw principles. As previously noted,[111] the applicability of the Briginshaw standard was agreed between the parties. The Coroner expressly noted that he achieved this degree of satisfaction in his findings:[112]

Where I have arrived at an adverse finding or comment in relation to an individual or entity, I have been satisfied that the appropriate standard of proof has been met.

[111]See [96]–[97] above.

[112]Coroner’s Report, 39 [119].

The Coroner said that the strength of evidence necessary to prove relevant facts varied according to the nature of the facts and circumstances in which they are sought to be proved. He said that the effect of Briginshaw and similar authorities is that the coroner should not make adverse findings against, or comments about, individuals or entities, unless the evidence provides a comfortable level of satisfaction that the individual or entity caused or contributed to the death.[113] He accepted that proof of facts underpinning a finding that would, or may, have an extremely deleterious effect on a party’s character, reputation or employment prospects demanded a weight of evidence commensurate with the gravity of the facts sought to be proved.[114] Facts should not be considered to have been proven on the balance of probabilities by inexact proofs, indefinite testimony or indirect inferences. Rather, such proof should be the result of clear, cogent or strict proof in the context of the presumption of innocence.[115]
[113]Coroner’s Report, 38 [117].
[114]Coroner’s Report, 38 [118], citing Anderson v Blashki [1993] 2 VR 89, following Briginshaw.
[115]Briginshaw v Briginshaw (1938) 60 CLR 336, 362–3 (Dixon J).

The parties agreed that this recitation of the law was not in issue. However, what was in issue was its application to the facts and circumstances before the Coroner and his conclusions in respect of Dr Runacres.

Adverse comments about professionals

In respect of adverse comments about professionals, the Coroner acknowledged that determining that a person in their professional capacity has contributed to the death of another person is a serious conclusion for a coroner to reach.[116]
[116]Coroner’s Report, 39 [120].

Reference was made to the earlier authorities of Secretary, Department of Health & Community Services v Gurvich[117] and Chief Commissioner of Police v Hallenstein[118] where the standard of proof was considered in the context of s 19(1)(e) of the now repealed Coroners Act 1985 (Vic) (the ‘1985 Act’). The Coroner noted that under the current Coroners Act, the question of a person’s contribution to a death is a matter for comment rather than findings into circumstances.[119] It would be a comment, either:

(a) that a person’s course of action departed from normal professional practices; or

(b) that there was another course of action available which would have been more likely to prevent death, or less likely to cause it.

[117][1995] 2 VR 69, 74.

[118][1996] 2 VR 1, 19.

[119]Coroner’s Report, 40 [122].

A comment of the second type, he said, ‘does not necessarily imply that the person had enough information to recognise that this other course would have been more appropriate’.[120]
[120]Coroner’s Report, 40 [123].

The purpose of making comments is directed towards identifying prevention opportunities and that it is particularly important to be able to make comments where systemic prevention opportunities exist that might relate to practices across the profession rather than a single practitioner.[121]
[121]Coroner’s Report, 40 [124].

The Coroner recognised that a comment that a practitioner had another course of action available to them which had a higher probability of preventing the death or a lower probability of causing the death, is an adverse one and is one in which the standard of proof is heightened in accordance with Briginshaw.[122] This is not to the degree required to justify a finding of negligence as would have been appropriate for findings under s 19(1)(e) of the 1985 Act.
[122]Coroner’s Report, 41 [125].

He commented that ‘as this is an objective issue, it is not appropriate to shun the benefit of hindsight when addressing it.’[123] He said it was important that a coroner is able to identify opportunities to prevent a death even if they were not apparent at the time and that this is central to a coroner’s death prevention function.
[123]Coroner’s Report, 41 [125].

He considered that normal professional practices will be a factor in considering whether a practitioner had enough information to recognise a better course of action. Where he proposed to make a specific comment that a health practitioner’s conduct was substandard for their profession, the heightened standard of probability and the heightened wariness of hindsight was applied. He said the same heightened standards must also apply to any notification or recommendation to a regulatory or professional body that a practitioner’s conduct should be reviewed and possibly be made the subject of disciplinary action.[124]
[124]Coroner’s Report, 41 [127]–[128].

Coroner’s ultimate findings

The Coroner’s Report traversed a wide range of matters including, amongst other matters, consideration of the factors that lead to Veronica’s incarceration in the first place and the practical implications of the 2018 changes to the Bail Act 1977 (Vic) and whether resulting effects had been congruent with the stated aims of the amendments. He considered the limitations of the criminal justice system which had allowed Veronica to appear unrepresented at her bail hearing and whether her Aboriginality and medical history were adequately accounted for by the institutions making decisions in relation to her.

He considered the extent to which stigma associated with Veronica’s Aboriginality, opioid dependency and criminal antecedents influenced the decisions that were made in relation to her care and management inside the prison. He noted the investigation posed some concerning questions about the operation of the custodial healthcare in Victoria and the adequacy of reviews of Aboriginal deaths in custody.

The structure of the Coroner’s Report was by reference to the decisions made in each of the locations, stages or events which preceded Veronica’s death. This traversed from her arrest and processing at Melbourne West Police Station, the bail application decisions and processes at the Melbourne Custody Centre and the Melbourne Magistrates Court, the absence of drug and alcohol support services and the absence of cultural support, through to her time at DPFC.

(a) Dr Runacres had no general recollection of Veronica’s RMA;

(b) Dr Runacres had no memory of Veronica being weighed but he nonetheless said she was weighed because a weight was recorded in the MAF, and that he ‘does not make up numbers’;[250]
[250]Coroner’s Report, 184 [518] citing Inquest Transcript, 1079.

(c) Dr Runacres suggested that there were scales in one of the clinical rooms or in the hallway;

(d) it was Dr Runacres’ evidence that it was RN Hills’ responsibility, as the nurse assisting him, to weigh patients. He said he does not weigh ‘these people’;[251]
[251]Coroner’s Report, 185 [518] citing Inquest Transcript, 1082.

(e) RN Hills’ evidence was that she could not recall a time in 60 to 70 shifts that there were entries in the medical record without a corresponding examination;

(f) apart from Dr Runacres’ notes, there was no other objective evidence about Veronica’s weight at the time of her reception at DPFC;

(g) the Coroner did not address the evidence that Veronica could have lost 5 kg of fluid from her stomach or bladder which Dr Baber said was ‘incredibly hypothetical’ and ‘not very likely’[252] and there was no further expert evidence on the point;
[252]Inquest Transcript, 2079.

(h) the CCTV footage did not capture all of Veronica’s movements during her stay at DPFC;

(i) Dr Runacres’ counsel submitted that Veronica could have been weighed before the RMA and in the absence of RN Hills;

(j) the evidence of RN Hills was that Veronica was not weighed;

(k) RN Hills had independent recall of the RMA and was unequivocal that Veronica was never weighed;

(l) RN Hills said there was no discussion between her and Dr Runacres about estimating Veronica’s weight;

(m) she discounted the possibility that Veronica was weighed when she was not present;

(n) the evidence of Dr Baber, who performed the autopsy on Veronica on 6 January 2020, reported her body weight at 33 kg, describing her as cachectic[253] and with a BMI calculated to be 12.9. Veronica’s BMI was described as being indicative of a person who is ‘grossly underweight’ and undernourished;[254]

(o) Dr Baber was questioned about how the deceased are weighed on receipt at the VIFM mortuary and the likelihood of significant weight loss in the approximate 36 hours period prior to or shortly after passing. Dr Baber’s opinion was that no weight loss that would ‘register in terms of kilograms’ would occur post mortem and it would not be possible for an individual to lose 7.7 kg or 5 kg in body weight in 36 hours of life;[255] and

(p) Dr Baber confirmed that Veronica’s malnutrition was apparent shortly before she passed because she was ‘incredibly thin’[256] and that her malnutrition was the most significant causative factor in Veronica’s passing because it would be unlikely for an otherwise healthy individual — that is, one not affected by the long term effects of malnutrition — to have passed if they were in the position Veronica was in in the last two or three days of life.[257]

[253]Cachectic refers to a person who has cachexia, which is a medical term for someone who appears very malnourished looking.

[254]Coroner’s Report, 67–8 [195].

[255]Coroner’s Report, 70–1 [205] citing Inquest Transcript, 2055, 2079.

[256]Coroner’s Report, 71 [206] citing Inquest Transcript, 2077.

[257]Coroner’s Report, 71 [208] citing Inquest Transcript, 2076–7.

Conclusion as to Grounds 4 and 5

As noted at [287] above, the Coroner found on the basis of Dr Baber’s evidence that Veronica weighed around 33 kg at the time of the RMA and that the weight recorded by Dr Runacres in the MAF was inaccurate.

Despite not being briefed with all of the information which was available to the Coroner, the Medical Conclave also formed a negative view of the appellant’s assessment and care, including record keeping.[258]
[258]Discussed at [149], [193], [268]–[270] above.

Evidence of others as to her physical appearance corroborated that Veronica was exceptionally or incredibly thin.[259]
[259]Coroner’s Report, 71 [206] citing Inquest Transcript, 2077 (Dr Baber). See also Coroner’s Report, 181–2 [506]–[507].

The Coroner found that there were many errors in Veronica’s medical file. As the Coroner noted, some of these errors, including as to her weight, were ‘critical’ in her care.[260]
[260]Coroner’s Report, 241 [696].

I am not satisfied that the conclusions drawn from the evidence available were wrongly formed. Where there was no direct evidence, the evidence was capable and supportive of the inferences the Coroner drew.

The finding that Veronica weighed ‘around 33kg’ at the time of her RMA was a finding open to him on the evidence of Dr Baber. The degree of weight loss over 36 hours raised is highly unlikely, thus does not weigh against the finding that weight on reception could logically or medically have been 7 kg more. The submission that the Coroner failed to engage with the submission that Veronia could have lost fluid (as opposed to body weight) is an ambitious one, both as a matter of evidence and of logic.

Where there was a conflict of evidence between RN Hills and Dr Runacres, the Coroner preferred the evidence of RN Hills. It is trite that a Coroner, upon hearing evidence viva voce, is entitled to reach a view as to the credibility of witness testimony. He was in the best position to make an assessment having observed the witnesses in person, both by reference to their demeanour and through analysis of internal and external inconsistencies. I reiterate my views at [279]–[280] above.

No direct evidence was given of anyone else who could or would have weighed Veronica.

The Coroner based his finding primarily on the cogent evidence of Dr Baber. Where he was required to draw inferences, he carefully weighed the evidence with reference to its credibility and consistency with the other evidence which was available to him. In doing so, he satisfied the demands of the Briginshaw standard.

As to the inference that the appellant thus must have falsified the medical record, as noted at [291]–[293] above, that is not the finding the Coroner in fact made. He said that the weight recorded was inaccurate. He was satisfied that she was not weighed during the RMA, as he similarly found that no physical examination took place. In finding these facts, he was persuaded by the weight of the evidence. This included the evidence of RN Hills and the rejection of the appellant’s version of events where there was a conflict of direct evidence, and taking into account corroborated testimony.

That there was a medical record entry (be it a pre‑populated one or not) of itself does not prove the examination, including weighing of Veronica in fact took place, especially where the person who made the notes cannot recall what in fact occurred (even after a review of CCTV footage) and there being clear evidence that the records were inaccurate.

The CCTV footage is equivocal without audio. It must be considered in the context of the competing other testimonies.

Whilst it was theoretically possible that Veronica was weighed (and other physical examinations took place) and that her weight was in fact 40.7 kg, the only evidence which would tend to prove that fact was the medical record entries. In the context of the medical record being woefully inaccurate and the evidence of the appellant that at least in some respects he thought ‘no one would read it anyway’, the veracity and evidentiary worth of the medical record entries is very limited and very much open to doubt. The reliability of a contemporaneously made written record can be diminished by evidence of its inaccuracy and error. The authenticity and reliability of the written record was undermined by the lack of care by the appellant in the entries made by him in Veronica’s medical record.

As I have found in respect of Grounds 2 and 3, I find that, consistently with the Briginshaw standard, the Coroner weighed the evidence carefully in accordance with its cogency, and inferences were guided by corroborating evidence. The Coroner carefully chose his wording so as to emphasise that the weight recorded by Dr Runacres was inaccurate, rather than making any specific finding as to fraudulent or dishonest behaviour. It is equally open to infer a lack of care or diligence on the part of the appellant.

I am also satisfied that the weight of the evidence before the Coroner was in favour of his ultimate finding — thus it cannot be described as ‘against the evidence and the weight of the evidence’ to such an extent that no reasonable coroner would have made it. As with the finding at [528], his Report reveals an evident and intelligible justification for his finding.

Grounds 4 and 5 fail.

GROUND 6: SETTING IN MOTION A ‘CHAIN OF EVENTS’
Conduct of Veronica’s RMA

After canvassing the facts and circumstances of Veronica’s assessment and care in the RMA process commencing at [419] of the Coroner’s Report, the Coroner then concludes (footnote omitted):

[539] In light of the above, I am satisfied that:
539.1 Dr Runacres’ reception medical assessment was not comprehensive and his records of it were inadequate;
539.2 Dr Runacres provided no plan for Veronica’s ongoing management and ought to have done so;
539.3 Veronica was unwell at the time of the reception medical assessment and her presentation warranted transfer to hospital.

[540]I find that Dr Runacres’ medical assessment and treatment of Veronica on 31 December 2019 was inadequate. Dr Runacres’ failure to physically examine Veronica, plan her ongoing care and maintain accurate records are significant departures from reasonable standards of care and diligence expected in medical practice.

What follows is the paragraph challenged as the third finding under review in this appeal, being at [541] of the Coroner’s Report where the Coroner says (footnote omitted):

Dr Runacres was the health professional responsible for identifying at reception whether Veronica was fit to be held in an unobserved cell. The reception medical assessment is intended to be a comprehensive health assessment and offered the best opportunity in the prison reception process for the extent of Veronica’s unwellness to be identified, recorded, treated and escalated. Dr Runacres’ failure to properly utilise this opportunity set in motion a chain of events in which her medical treatment and care was inadequate in an ongoing way.

The statement is followed by the following finding at [542]:

I find that Veronica should have been transferred to hospital at the time of her reception to DPFC, and that CV and CCA staff continually failed to transfer her to hospital thereafter, and this ongoing failure causally contributed to her death.

Given all that came before, the observation at [541] was a fair one and clearly open to the Coroner to form that view.

Does [541] amount to a finding?

As noted at [14] above, a Coroners Act appeal is limited to the statutory findings of a coroner and there is no such right of appeal against a coroner’s comments or recommendations in respect of a death.

‘Finding’ is not defined in the Coroners Act and there been no jurisprudential analysis of what constitutes a ‘finding’ made under s 67(1), as distinct to a comment or recommendation made under ss 67(3) and 72(2) respectively. Nor is there any guidance as to the proper characterisation of statements made which do not fit in any of these categories.

The Coroner made a large number of observations and formed conclusions preparatory to his statutory findings made in accordance with s 67 of the Coroners Act.[261] These included the specific findings against the appellant in this proceeding. The Coroner also made referrals and notifications in respect of certain individuals to the relevant professional regulatory bodies[262] and, in accordance with s 72(2) of the Coroners Act, he made a large number of associated recommendations connected with Veronica’s passing.[263]
[261]The findings are found throughout the Coroner’s Report and are consolidated in Appendix B.
[262]Coroner’s Report, 301–303 [871]–[877]. These were to the Victorian Legal Services Board and Victorian Legal Services Commissioner, the Australian Health Practitioner Regulation Agency and the Director of Public Prosecutions.
[263]Collated in Coroner’s Report, Appendix C.

In my view, in its context, the statement at [541] is a preliminary causative conclusion on the evidence which forms part of the continuum of analysis which underpins the ultimate finding at [542]. As such, it is not itself an appealable finding for the purposes of the Coroners Act. I am fortified by the following factors:

(a) the statement at [541] immediately follows the finding at [540] and precedes the finding at [542]. It refers to subject matter in both of those findings and presents as a summary of the evidence and previous findings in the Report which leads to the ultimate statutory finding at [542]. This is a pattern of reasoning reflected in the Coroner’s Report where the Coroner states his satisfaction as to certain matters which then leads him to a statutory finding. For example, [539] (which sets out various deficiencies in Dr Runacres’ RMA) is a preliminary conclusion upon which the finding at [540] (that Dr Runacres’ medical assessment and treatment of Veronica was inadequate) is based;

(b) the statement at [541] does not contain the expression ‘I find’, which is the nomenclature adopted by the Coroner for every other finding in the Report. The same approach is adopted for recommendations. The Coroner’s comments are included at [879]–[881] of the Report; and

(c) the statement at [541] is not included in Appendix B, which is the section of the Report in which ‘all’ of the Coroner’s findings appear.[264]

[264]Coroner’s Report, 304 [878].

However, even if it is properly to be characterised as a finding, it is not one which is ‘against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made it’ nor lacks an evident and intelligible justification:

(a) the first two sentences of [541] are uncontroversial and wholly supported by the evidence;

(b) the observation that Dr Runacres failed to ‘properly utilise’ the RMA is supported by the weight of the evidence as to his inadequate treatment, care and record keeping in respect of Veronica, including the evidence (canvassed above) which led to the Coroner’s findings at [528] and [520]; and

(c) the fact that Dr Runacres’ failure ‘set in motion’ a ‘chain of events in which her medical treatment and care was inadequate in an ongoing way’ is a rearticulation of the importance of the RMA in determining a prisoner’s ongoing care in the prison healthcare system — both of which in this case were found to be inadequate. It also reflects the finding that Dr Runacres’ records were inadequate in important respects and were relied on by subsequent medical officers and prison staff. It is also consistent with the finding at [542] that Dr Runacres should have transferred Veronica to hospital at the time of her RMA, and at [831] that Veronica’s death was preventable.

I note that in oral submissions, counsel for the appellant conceded that Dr Runacres’ RMA may be said to have a causal relationship with Veronica’s death in a ‘mechanical’ sense (as opposed to a ‘fault’ or liability sense).[265] This concession is telling. Indeed, the Coroner did not, and cannot, make findings of legal liability or guilt. I take the Coroner’s statement as to causation in this instance as referring to the factual causal connection between the RMA and subsequent inadequate care which was open to him to make.
[265]Trial Transcript, 11.

Ground 6 fails.

CONCLUSION

For the reasons I have set out, I have determined that there is no legal error in the findings under challenge.

The task of the Court on an appeal brought under s 87 of the Coroners Act is a supervisory one. It is not an appeal on the merits. The applicant must identify a question of law sufficient to warrant intervention by the Court.

An appeal on a question of law includes an appeal on the grounds that the finding is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made it. It also includes an error with respect to the evidential standard which the Coroner applied to the evidence.

As previously set out, the Coroner’s investigation covered many topics and his Report traversed many matters. The medical care of Veronica, whilst a subset of the areas which were the subject of the investigation, was a crucial part of the Coroner’s investigation.

Dr Runacres does not seek to review all of the findings adverse to him. In making the case for the unreasonableness of the Coroner’s Findings as to Veronica’s medical care insofar as Dr Runacres was involved, the focus was on the CCTV footage and the evidence which formed the temporally limited time frame between her arrival at DPFC at 4:35pm on 31 December 2019 and the end of Dr Runacres’ shift.

To focus on this portion of the time in which Veronica was in custody at DPFC is understandable from his perspective. There is logic to the argument that he was not responsible for her care after he left the premises.

However that was not sufficient in the view of the Coroner to avoid part of the responsibility for the assessment and care of Veronica. Rather, as he plainly stated, the RMA is key to setting up the care for a prisoner. Tardiness, inaccuracy or failure to undertake this task in accordance with the standard expected is justly criticised.

Findings of the Coroner in respect of other medical staff who interacted (or failed to interact) with Veronica after this time were also the subject of adverse findings and observations.

I have reviewed the whole of the Coroner’s Report and the documents and transcript which formed the materials in the Court Book. There is a difficulty in properly determining a claim of unreasonableness of a finding in the limited and isolated way in which it was emphasised before me on behalf of the appellant. Whilst not every matter the Coroner considered in his investigation is relevant to the role played by Dr Runacres, the context as a whole is important. To focus on the three paragraphs which are raised in the appeal in isolation from the whole of the relevant evidence and the reasoning which led to those conclusions would be inappropriate.

It would equally be an inappropriate assessment of the evidence to look only at parts of the CCTV footage in isolation from the Coroner’s observation and findings as to credit and his conclusions as to who he found to be witnesses of truth. The consideration of all of the evidence and the weight given to particular parts in isolation and in combination is the task for the Coroner.

The position of the Coroner, who had the benefit of seeing and hearing all of the witnesses in person (and not just a transcript of their oral evidence as was before me) and the ability to make an assessment of the veracity of their evidence and their demeanour, cannot be underplayed.

The Coroner’s Report dealt with the claim of inconsistency in respect of RN Hills’ evidence. He explained his view of those matters raised with him. The matters were not ignored, they were just not accepted on the balance of probabilities that that evidence outweighed the contrary evidence. It was open to the Coroner to form the view of the evidence that he did.

Just because there is an inconsistency in the evidence, or that there is a dispute as to the facts and events does not amount to lack of reliability to the requisite degree. The appellant’s challenge to the Coroner’s assessment of the evidence does not argue that there was no evidence upon which the Coroner could form the view that he did. The submission is that the conclusion was ‘against the evidence and the weight of the evidence’ to the extent that no reasonable coroner could have formed the view that he did. That there may be some other theoretical explanation or version of the facts of itself is not enough. The bar is a high one.

I acknowledge that the implications of the Coroner’s Findings are adverse to the applicant. That said, I am not satisfied that the only inference which can be drawn from the lack of satisfaction that Veronica was weighed is not fraud, but a lack of care or diligence. In respect of the physical examinations, a similar observation can be made.

The Coroner having correctly identified the Briginshaw test, acknowledging the significance of the impact of an adverse finding on the character, reputation or employment prospects of an individual and the presumption of innocence, weighed the evidence and formed his conclusions. It is not the role of this Court to substitute its own view or stand in the shoes of the Coroner, but to examine the material before the Coroner and determine whether it was open to him to form the conclusions he did on evidence which was sufficiently clear and cogent and not based on inexact proofs, indefinite testimony or indirect inferences.

Having reviewed the Inquest Transcript, the relevant statements of the witnesses, the CCTV footage to which I was referred, and the submissions of the relevant participants both before the Coroner and before me, and applying the legal principles by which I am bound, I am not persuaded that the Coroner erred in his findings against Dr Runacres.

On the question of whether the ‘finding’ at [541], that Dr Runacres set in motion a chain of events in which Veronica’s medical treatment and care was inadequate in an ongoing way, was a statutory finding or (an unappealable) comment or other kind of observation, I am of the view that it was a causative conclusion which is not itself a finding, but part of the Coroner’s reasoning in respect of the flawed course of conduct in Veronica’s assessment and inadequate medical treatment. It is clearly an adverse statement but is equally one that was open to the Coroner. He had the benefit of hearing the continuum of evidence from Veronica’s reception to her death, and the aftermath. The finding which follows from this observation is that at Item 23 of Appendix B and found at [542] in the body of the Coroner’s Report. It is preceded by the finding at Item 22 of Appendix B, found at [540] of the body of the Coroner’s Report. There are numerous conclusions on the evidence which are just that and do not form a formal statutory finding in their own right.[266]
[266]For example, the conclusory statement at [539] of the Coroner’s Report where the Coroner states that he is satisfied of certain deficiencies in Dr Runacres’ treatment and care of Veronica upon which the finding at [540] (which is Appendix B Item 22) that Dr Runacres’ medical assessment and treatment of Veronica was inadequate.

For the foregoing reasons, I am not satisfied that there is any basis to overturn the challenged findings in respect of the appellant.

The appeal is dismissed.

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[2024] VSC 304

11 June 2024