Somerville v Coroners Court of Victoria
[2016] VSC 543
•8 September 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 05485
| MOIRA CATHERINE SOMERVILLE | Appellant |
| v | |
| CORONERS COURT OF VICTORIA | Respondent |
---
JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 July 2016, 16 August 2016 |
DATE OF JUDGMENT: | 8 September 2016 |
CASE MAY BE CITED AS: | Somerville v Coroners Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2016] VSC 543 |
---
JUDICIAL REVIEW AND APPEALS - Appeal against investigation findings of Coroner – Application to set aside investigation findings of Coroner – Appeal made out of time – Leave to appeal out of time due to exceptional circumstances not granted - Appeal against subsequent determination of State Coroner refusing to reopen an investigation – Appeal to the Supreme Court on a question of law – No error of law identified in respect of determination - Appeal made by a person with sufficient interest – held not necessary or desirable in the interests of justice to allow appeal - appeal dismissed - Coroners Act 2008 ss 83, 84(1), 86, 87A.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Bracken | |
| For the Respondent | Ms N Hodgson | Coroners Court of Victoria |
HER HONOUR:
On 26 December 1988, Erin Somerville died after she fell off a ride-on lawnmower which then moved backwards over her. Erin was four years old. Her brother Michael, who was 10 years old at the time, had been operating the lawnmower immediately prior to her fall. There was an inquest. The Coroners Court subsequently made a number of findings on 1 May 1989 (‘the Investigation Findings’). One of the Investigation Findings was that Michael contributed to the cause of death to the limited extent that he was actually driving the mower at the time of the accident.
Approximately 26 years later, in August 2015, the appellant requested the Coroners Court set aside the Investigation Findings regarding Michael, and re-open the investigation into Erin’s death. The appellant is Erin’s mother. The Coroners Court declined the appellant’s request and provided reasons dated 21 September 2015 for its decision (‘the Determination’).
The appellant subsequently issued proceedings in this Court. She appeals both the Investigation and Determination Findings. In these proceedings, the appellant seeks to overturn the Investigation Findings regarding Michael, and, in the alternative, seeks orders to re-open the inquest.
Michael was not given notice of these proceedings.
For the reasons below, the Court declines to make the orders sought by the appellant, and will dismiss the appeal.
Background
The Investigation Findings
The substantive Investigation Findings were as follows:
…the identity of the deceased was Erin Moira SOMERVILLE and that the death occurred on 26th December, 1988 at 87 Wentworth Road, Wonthaggi from massive head injuries in the following circumstances.
1.The deceased was sitting on a “Cox” ride-on mower being driven by her 10 year old brother, Michael. Her 5 year old brother Chris was also seated on the mower. The three children were seated with Michael in the middle of the driver’s seat, Chris on the right side of the driver’s seat with his legs over the top of the rear wheel guard and the deceased on the left side of the driver’s seat with her legs over the top of the rear wheel guard. The engine was on. The blades of the mower were engaged.
2.As Michael accelerated forward, the deceased and Chris both fell off the mower, Chris to the side, the deceased to the back.
3.Michael immediately stopped the mower causing the mower to move backwards over the deceased. She sustained the injuries from which she died.
4.The deceased’s uncle, Leslie John Sund who lived at 87 Wentworth Road, Wonthaggi was supervising the children at the time of the accident.
I further find that Michael Somerville contributed to the cause of death to the limited extent that he was actually driving the mower at the time of the accident and that Leslie John Sund contributed to the cause of death insofar as he was the only adult present whilst the children engaged in a dangerous activity.
NOTE:- The finding that Michael Somerville contributed to the cause of death to the limited extent that he was actually driving the mower at the time of the accident, is not a finding of blame or liability on his part but a finding of mere fact and causation as required by the Coroners Act 1985[1].
[1]Affidavit of Sarah Elizabeth Gebert affirmed 13 May 2016, Exhibit ‘SEG2’.
The Determination
The order made pursuant to the Determination is as follows:
…that the findings not be set aside as I am not satisfied that there are new facts and circumstances and it is not appropriate to re-open the investigation pursuant to section 77(3) of the Coroners Act 2008[2].
[2]Affidavit of Moira Catherine Somerville affirmed 16 August 2016, Exhibit ‘MCS-2’.
The grounds for the appellant’s request for further investigation are summarised in the Determination as follows.
Request for further investigation
5.On 21 August 2015, the Court received a request from Erin’s mother, Moira Somerville, to set aside the findings relating to Michael Somerville’s contribution to Erin’s death and re‑open the investigation into Erin’s death, pursuant to section 77 of the Coroners Act 2008.
6. Ms Somerville’s application states the following:
(i)If Michael, at 10 years of age, was to be partially blamed, why was he not interviewed?
(ii)How could anyone operate the ride-on mower with the seat attached incorrectly?
(iii)Why do the police reports not mention the seat issue when it is obviously (sic) from their photos?
(iv)Inconsistency with many reports, one being the road-worthiness report of the mower and police report, another being location of the incident and the mower, both at the time of the incident and after, the police inspection of and subsequent statement[3].
[3]Affidavit of Moira Catherine Somerville, above n 2, being page 55 of the Court Book.
The reasons in the Determination are as follows:
10.The Court may set aside findings and reopen an investigation under subsection 77(2) of the Coroners Act if it is satisfied that:
(i) there are new facts and circumstances; and
(ii) it is appropriate to reopen the investigation.
11.This means that for the application to be successful, I must be satisfied that both elements of the above test are met.
12.The requirements of the first element of the test are clear. The ‘new facts and circumstances’ encompasses facts and circumstances that are new and were not known to a Coroner at the time of the original investigation. The new facts or circumstances must be such that a previously accepted fact, material to findings regarding the identity of the deceased, the cause of death and/or other pertinent circumstances surrounding the death under investigation, is so altered that the relevant finding may be unsustainable.[4]
[4]Mortimer v West (in his role as Deputy State Coroner) [2015] VSC 150 (21 April 2015).
13.I consider that Ms Somerville’s application does not constitute or introduce new facts and circumstances that were not before Coroner Dessau at the time of the original investigation and therefore does not meet the requirements of section 77(3)(a) to reopen the investigation and set aside the findings.
14. As to Ms Somerville’s concerns at paragraph 6 above, I note:
(i)Ms Somerville queried why Michael was not interviewed for the coronial investigation purposes. The Court file contains a memoranda from the Officer in Charge of the investigation, dated 30 January 1989, which states:
‘On the 30th of January, 1989, I spoke to John Somerville (father) of witness in relation to attached file, in regard to obtaining a statement from his son Michael, aged 10 years.
I was informed by the parent that the child was still under trauma over the incident involving his younger sister Erin, aged 4 years. Michael is under strict specialist therapy over the accident.
I was also advised that the child has become withdrawn and any attempt to divulge information at this early stage may prove detrimental to the child's mental state and treatment;
Owing to the above circumstances a statement cannot be obtained at this stage. The father has made comment to the effect that he would assist police in any further information required, if needed.’
The above information was obtained from the Court file and was therefore available to Coroner Dessau at the time of her original investigation. As such, Ms Somerville’s application does not introduce new facts and circumstances that were not before Coroner Dessau at the time of the original investigation and therefore does not meet the requirements of section 77(3)(a) to reopen the investigation and set aside the findings.
(ii)Ms Somerville queried how anyone could operate the mower with the seat on backward (as seen in the photographs contained in the coronial brief). I note that Michael had reportedly been operating the mower for a short time prior to the accident and others (adults, including Mr Somerville) had reportedly operated the mower in the day/s prior to the accident. It is evident that it was, in fact, possible to operate the mower despite the seat being incorrectly fixed, backward-facing. As the photographs referred to in Ms Somerville’s application are contained in the coronial brief, Ms Somerville does not introduce new facts and circumstances that were not before Coroner Dessau at the time of the original investigation and therefore does not meet the requirements of section 77(3)(a) to reopen the investigation and set aside the findings.
(iii)Ms Somerville queried why the police reports did not mention the mower’s seat being incorrectly fixed, backward-facing. I cannot say why the police report did not mention the mower’s seat being fixed, backward-facing, but I note that a mechanical inspection was conducted by a qualified police mechanical technician. Ms Somerville’s application does not introduce new facts and circumstances that were not before Coroner Dessau at the time of the original investigation and therefore does not meet the requirements of section 77(3)(a) to reopen the investigation and set aside the findings.
(iv)Ms Somerville seeks clarification of ‘inconsistency with many reports’. She refers to the road-worthiness report, police report, report of location of incident and mower, the police inspection and subsequent statement. Ms Somerville’s application refers to materials that are all contained in the coronial brief. As such, Ms Somerville’s application does not introduce new facts and circumstances that were not before Coroner Dessau at the time of the original investigation and therefore does not meet the requirements of section 77(3)(a) to reopen the investigation and set aside the findings.
15.As Ms Somerville’s application does not meet the first limb of the test, I do not need to consider the second limb of the requirement; that is whether it is ‘appropriate’ to reopen the investigation.[5]
16.I note, however, that with the passage of some 25 years since Erin’s death, it is highly likely that the ride-on mower involved in this incident would not be available for further testing. If the mower was available, its condition would have so deteriorated over 25 years that it could not truly be compared to its condition at the time of the accident. Further, police members, including the member who conducted the road-worthiness report, would likely have moved on or retired in the time that has passed. If available, the memories of officers involved in this investigation could not be so reliable regarding events of 25 years prior, as to enable a real re-investigation of the issues Ms Somerville has raised.
17.Ms Somerville’s application to set aside the findings and re‑open the investigation into the death of Erin Somerville is refused.
18.Ms Somerville’s ongoing anguish at her daughter’s tragic death 25 years ago is palpable in her application to re-open the investigation. It is clear that Ms Somerville has been deeply affected by this terrible tragedy and I convey my sincere condolences to her, and indeed to Erin’s family, at Erin’s tragic and untimely death in 1988. I convey my sincere condolences particularly to Erin’s brother, Michael, who has also reportedly been deeply affected by the accident.[6]
[5]Coroner’s Act 2008 (Vic), s 77(3)(b).
[6]Affidavit of Moira Catherine Somerville, above n 2, being pages 56-59 of the Court Book.
Grounds of Appeal
The appellant’s Notice of Appeal filed on 19 October 2015 relied upon s 84 of the Coroners Act 2008 (‘the Act’). With the leave of the Court, she filed an Amended Notice of Appeal on 21 March 2016. The Amended Notice of Appeal relied upon ss 83, 84(1) and 87A of the Act.
(A) The Investigation Findings, pursuant to s 83 of the Act
Grounds of Appeal:
(1) There was no evidence upon which a finding that Michael Somerville contributed to the cause of Erin Somerville’s death could or ought to have been made.
Particulars: the Coroner found that -
The engine was on and the blades of the mower were engaged. As Michael accelerated forward, the deceased and Chris both fell off the mower, Chris to the side, the deceased to the back. Michael immediately stopped the mower causing the mower to move backwards over the deceased. (Emphasis added) She sustained the injuries from which she died …
… I find that Michael Somerville contributed to the cause of death to the limited extent that he was actually driving the mower at the time of the accident … (Emphasis added)
(2) The Coroner denied Michael Somerville natural justice in that the Coroner denied Michael Somerville, a person at risk of an adverse finding, the opportunity to be heard.
Particulars:
(a)The Coroner denied Michael Somerville the opportunity to:
(i)give evidence;
(ii)question witnesses including Doctor Maxfield, who treated Erin Somerville at the Wonthaggi Hospital shortly after she was injured; and
(iii)make submissions
at the inquest.
(B) The Determination, pursuant to s 84(1) of the Act
Grounds of Appeal:
(1) In determining not to re-open the inquest and set aside the finding that Michael Somerville contributed to Erin Somerville’s cause of death, the Coroner did not consider all the material before him as a part of the appellant’s application. His Honour:
(a)erred by not finding that there were new facts or circumstances; and
(b)erred by finding that it was not appropriate to re-open the Investigation pursuant to section 77(3).
Particulars:
His Honour did not refer to the content of the letter from the Mental Health Legal Centre to the Principal Registrar of the State Coroner’s Office dated 18 June 2014 attached to Ms Somerville’s application to re-open the Inquest and set aside findings. The material submitted by the Appellant supporting her application pursuant to s 77 explicitly refers to the letter being attached. His Honour Judge Gray refers to the content of the material support the application in his determination but not to the content of the letter. The content of that letter constitutes new facts and circumstances. In such circumstances it was appropriate that the Inquest be re-opened.
Question of Law:
Had evidence that the seat on the mower was broken and not properly fixed to the mower been adduced at the Inquest there would have been insufficient evidence for the Coroner to find that Michael Somerville contributed to the cause of Erin Somerville’s death.
(C) The Determination, pursuant to s 87A of the Act
In relation to s 87A, the appellant submits that it is in the interests of justice that only those who contribute to the cause of a person’s death be found to have done so.
Grounds of Appeal:
(1) In determining not to re-open the inquest and set aside the finding that Michael Somerville contributed to Erin Somerville’s cause of death, the Coroner did not consider all the material before him as a part of the appellant’s application. His Honour:
(a)erred by not finding that there were new facts or circumstances; and
(b)erred by finding it was not appropriate to re-open the investigation pursuant to section 77(3) Coroners Act (2008).
The Amended Notice of Appeal states that the following orders are sought:
(a)The Investigation into the death of Erin Moira Somerville is re‑opened.
(b)The finding of the Coroner her Honour Ms Dessau that Michael Somerville contributed to the cause of death to the limited extent that he was actually driving the mower at the time of the accident is set aside.
Submissions and Evidence
The respondent, that is, the Coroners Court, appeared to assist the Court in circumstances where there was no contradictor. The Coroners Court will submit to such orders as the Court may make.[7]
[7]The respondent refers to the comments of the High Court in R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13, 35–6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).
The evidence filed in respect of this hearing is as follows:
(a) affidavit of appellant affirmed on 19 October 2015;
(b) supplementary affidavit of appellant affirmed on 23 October 2015; and
(c) affidavit of appellant affirmed on 16 August 2016 (‘the appellant’s third affidavit’);
(d) affidavit of Sarah Elizabeth Gebert, the respondent’s solicitor, affirmed on 13 May 2016 (‘the Gebert affidavit’).
The appellant and respondent both made written and oral submissions. Subsequent to the hearing, and at the Court’s request, the parties made further written submissions on 15 July 2016 and 4 August 2016. These further submissions were in the form of a joint memorandum and were of assistance to the Court.
The primary submissions made by each party are as follows.
(A) The Investigation Findings, pursuant to s 83 of the Act
Extension of Time, s 86
It is common ground that the appeal in respect of the Investigation Findings is out of time.
The respondent indicated that the Coroners Act1985 (‘the 1985 Act’) applied at the time of the Investigation Finding. It contained no statutory time limit in which application could be made to the Supreme Court to hold a new inquest, re-open an inquest and re-examine any finding. The joint memorandum provided by the parties to the Court on 15 July 2016 answered a question by the Court as to whether there was any time limit for appeal under the relevant Court rules at the time. The joint memorandum submission is that r 58.02(d) of the General Rules of Procedure in Civil Proceedings 1986 (‘the Old Rules’) contained a time limit of 21 days from the date of determination. Such a time limit is not in the current Rules. Rather, the applicable time limit is now in s 83(3) of the Act and is six months. Section 86 of the Act permits the Court to grant leave to appeal out of time in ‘exceptional circumstances’.
The appellant seeks leave to appeal out of time pursuant to s 86 of the Act, that is, on the basis that there have been exceptional circumstances. In the appellant’s third affidavit, she deposes to her longstanding history of illness and treatment. The appellant submits that this extraordinary history caused her to be incapable of instituting an appeal pursuant to s 83 of the Act within the specified time and constitutes exceptional circumstances.
The appellant submits that the finding that her son Michael contributed to the death of his sister Erin has blighted her life and caused considerable ongoing distress to Michael, and consequently the appellant and Michael have become estranged.
The appellant submits that unresolved issues arising from coronial proceedings may exacerbate grief.
The appellant submits that it is in the interests of justice that the true cause of Erin’s death be declared and only those who truly contributed to it be named as having done so.
Section 83 grounds
As to whether the appellant falls within the ambit of s 83(1) of the Act as a person with a ‘sufficient interest’ or s 83(2) as an ‘interested party’, the respondent submits that the Act does not provide a definition of ‘sufficient interest’. As to whether the appellant falls within the definition of ‘interested party’ in s 3, being ‘a person granted leave under s 56 to appear at the inquest’, the respondent indicates that s 45 of the 1985 Act permitted a person with sufficient interest to appear. The respondent indicated that the appellant had not appeared at the inquest. The second joint submission of the parties cited authority for the proposition that a person with ‘sufficient interest’ includes a close personal relation. The parties submit that as Erin’s mother, the appellant qualifies as a person with ‘sufficient interest’.
Ground 1: There was no evidence upon which a finding that Michael Somerville contributed to the cause of Erin Somerville’s death could or ought to have been made.
The appellant refers to the Investigation Findings, and in particular the finding that ‘Michael immediately stopped the mower causing the mower to move backwards over the deceased’ and that he ‘contributed to the cause of death to the limited extent that he was actually driving the mower at the time of the accident’.
The appellant submits that the boundaries of the accident are not dealt with in detail in the Investigation Findings. When did the accident begin? It is uncontroversial that Michael was on the mower and operating it at the time of Erin’s death. Causation is less clear. Was his conduct a cause or just a background circumstance and therefore non-causal? The appellant refers to Khan v Keown.[8]
[8](2001) VSCA 137, [15]–[16] (Ormiston, Phillips and Batt JJA).
The appellant refers to the evidence given at the inquest by Mr Sund, Senior Constable Exton and Senior Constable Earl as to how Erin was injured. The accident causing Erin’s death may or may not have included her fall from the mower. It is not clear how it happened that the mower went backwards. It had no brake and its motion was governed by a long pedal.
The appellant submits that there was no analysis or testing done at the inquest. There is a question about the incline. There is no evidence about the degree of incline, which way it faced or whether the mower would have rolled because of it.
The appellant notes that Senior Constable Earl inspected the site and was entitled to make some observations about it. His evidence about the slight incline of about 15 cm raises the question of: 15 cm over what? Was it over a long distance or a short distance? Senior Constable Earl’s evidence is that Michael stopped the lawnmower ‘and as he did this it appears that pressure may have been applied to the rear of the accelerator causing the mower to reverse. The mower then reversed over the top of the Deceased who went under head first’[9]. The appellant says this is speculative. Senior Constable Earl was not a witness to the accident.
[9]Appellant’s Submissions being page 148 of the Court Book and Transcript of Proceedings, Inquisition Upon the Body of Erin Moira Somerville, Coroner’s Court, Coroner L.M. Dessau, 1 May 1989, 11.
The appellant says that Senior Constable Exton’s evidence is that the mower rolled back because it was on an incline. He was not at the scene of the accident.
Mr Sund was at the scene of the accident. The appellant refers to his evidence that Michael stopped the mower and as he did it moved backwards, and then drove over Erin who was lying behind it.
The appellant says that exactly how the mower went backwards is unclear. It is not clear that Michael drove it backwards. Even if some pressure was applied by him [on the operating pedal], there is no evidence of how this occurred. If Michael did not drive the mower backwards, his operation of the mower was non-causal of Erin’s death. It is unknown how he is said to have caused the death. The evidence only establishes that Michael was on the mower, and it moved forward and then back.
The appellant says that the evidence highlights that Mr Sund, Senior Constable Exton and Senior Constable Earl all gave evidence that the mower, which did not have a brake but rather only a forward and backward motion of operation, was on an incline when it stopped.
In relation to the submission of the appellant that there was no evidence upon which a finding could be or ought be made, the respondent refers to Senior Constable Earl’s evidence (cited above) about the mower stopping and that pressure may have been applied causing the mower to reverse. The respondent observes that Senior Constable Earl was not a witness to the accident or a mechanical engineer or expert in relation to the operation of the lawnmower. The Coroner, in her handwritten record of investigation noted:
Michael immediately stopped the mower, causing
his foot apparently slipping to the rear of the accelerator pedalthe mower to movedbackwards over the deceasedwho was lying on the ground. She sustained injuries from which she died.[10]
[10]Affidavit of Sarah Elizabeth Gebert, above n 1, being pages 81-82 of Court Book .
The appellant observes that the note above did not form part of the Coroner’s finding. What is set out in the finding is that ‘Michael immediately stopped the mower causing the mower to move backwards over the deceased’.[11] Further, he ‘contributed to the cause of death to the limited extent that he was actually driving the mower at the time of the accident…’.[12]
[11]Emphasis added.
[12]Emphasis added.
The respondent refers to the evidence in the Inquest file of a diagram of the scene of the accident upon which it is noted that the ground slopes upwards and there is a fall of about 15 cm.[13] The respondent refers to the evidence of Senior Constable Exton, a mechanical engineer:
… Now the situation is that the vehicle has no brakes whatsoever, and they’re designed that way, and by when the young man who has been driving it has realized that two person have fallen off, he has obviously taken the pressure off the pedal, which has neutralised the whole system and that’s why its rolled backwards, because it’s been on the incline.[14].
[13]Affidavit of Sarah Elizabeth Gebert, above n 1, being page 90 of the Court Book.
[14]Outline of Submissions on Behalf of the Respondent, dated 13 May 2016 being page 153 of the Court Book with reference to paragraph 24 the Appellant’s Submissions being page 147 of the Court Book and Transcript of Proceedings, Inquisition Upon the Body of Erin Moira Somerville, Coroner’s Court, Coroner L.M. Dessau, 1 May 1989, 7.
The respondent refers to the evidence of Mr Sund:
…Yes, it just started, both children fell off, Michael stopped and in doing so went straight backwards. The pedal was to push it forward, go forward, to stop if you like actually engage it in reverse, that’s the design of it. So it sort of started with a jerk because it was on an incline and the children fell off, he stops, in doing so went backwards[15].
[15]Ibid and Inquisition Transcript, 5.
The respondent submits that there is no evidence about whether or not there should have been an assessment or analysis. However, this would be an issue that goes to adequacy of reasons rather than whether there was evidence upon which to make the finding.
The respondent says that whether there was no evidence upon which the Coroner based her ruling, or the ruling was simply against the weight of evidence is a matter for determination by the Court. The respondent refers to Thales Australia Ltd v Coroners Court of Victoria.[16] It makes no submission about whether there was some evidence or no evidence upon which the Coroner made her ruling. It submits that in cases where there is some evidence upon which a ruling is based, it is within the Coroner’s discretion to draw a particular conclusion and doing so will not constitute an error of law.
Ground 2: The Coroner denied Michael Somerville natural justice in that the Coroner denied Michael Somerville, a person at risk of an adverse finding, the opportunity to be heard.
[16][2011] VSC 133, [58]–[59].
The appellant says that there was a notion at the time of the inquest that a person should be given the opportunity to be heard if there is a risk there may be an adverse finding against that person. If he was represented, he would have the opportunity to give evidence.
The respondent says that it was clear from the material in the inquest brief that Michael was operating the mower at least immediately before the incident and accordingly the finding may potentially include an adverse statement in relation to him. Indeed it did.
The respondent refers to the evidence in the inquest brief that an unsuccessful effort was made to obtain a statement from Michael.[17] The inquest proceeded some three months after the indication that a statement could not be obtained ‘at this stage’.
[17]Letter from Senior Constable Lawler to Officer in Charge of Wonthaggi Police dated 30 January 1989, Affidavit of Sarah Elizabeth Gebert, above n 1, being page 88 of the Court Book.
The respondent submits that Annetts v McCann is High Court authority for the principle that it is incumbent upon a coroner to accord natural justice to any person upon whose conduct the coroner’s finding may reflect unfavourably.[18] Although this case was decided after the Investigation Findings were made, the respondent says it followed a line of authority requiring a public official acting under power conferred by legislation to accord natural justice unless the words of the statute provided otherwise.[19] Annetts v McCann concerned minors who were both deceased and parents who sought to make a closing address and so, in that sense, differed from the current proceeding. It is unclear whether Michael’s parents (including the appellant) or the deceased were represented. Michael was not represented at the inquest (as he was 10 years old) and therefore did not cross-examine witnesses or make submissions.
[18](1990) 170 CLR 596, 608 (Brennan J).
[19]Ibid.
(B) The Determination, pursuant to s 84(1) of the Act
Grounds of Appeal:
(1) In determining not to re-open the inquest and set aside the finding that Michael Somerville contributed to Erin Somerville’s cause of death, the Coroner did not consider all the material before him as a part of the appellant’s application. His Honour:
(a)erred by not finding that there were new facts or circumstances; and
(b)erred by finding that it was not appropriate to re-open the Investigation pursuant to section 77(3).
Question of Law:
Had evidence that the seat on the mower was broken and not properly fixed to the mower been adduced at the Inquest there would have been insufficient evidence for the Coroner to find that Michael Somerville contributed to the cause of Erin Somerville’s death.
The appellant refers to the letter sent to the State Coroner’s Office dated 18 June 2004 from a legal centre acting on her behalf (‘the Letter’).[20] She says that the Determination makes no explicit reference to the Letter or the issues raised in it. She says that the Determination did not address her submission that the seat was broken and not properly fixed, thereby causing the accident. That is, the cause or reason for the accident was that the seat was not on properly. The only reference at the inquest was to the seat being on backwards. The reference to Erin falling off the seat is inconsistent with other evidence. There is no real evidence that Michael was driving at the time of her death.
[20]Affidavit of Sarah Elizabeth Gebert, above n 1, being pages 70-71 of the Court Book.
The respondent submits that an appeal under s 84(1) of the Act is an appeal on a question of law save for when it is made under s 87A.
The respondent refers to the evidence in the Inquest file that the mower seat was on backwards.[21]
[21]Photograph of mower, Affidavit of Sarah Elizabeth Gebert, above n 1, being page 141 of Court Book.
The respondent submits that in the Determination, there was reference to the two stage test required under s 77 of the Act.
The respondent says that while the Determination did not explicitly refer to the Letter, there was reference to the appellant querying how anyone could operate the mower with the seat on backward. The Determination noted that Michael:
…had reportedly been operating the mower for a short time prior to the accident and others… had reportedly operated the mower in the day/s prior to the accident. It is evident that it was, in fact, possible to operate the mower despite the seat being incorrectly fixed, backward-facing. As the photographs referred to in Ms Somerville’s application are contained in the coronial brief, Ms Somerville does not introduce new facts and circumstances that were not before Coroner Dessau at the time of the original investigation and therefore does not meet the requirements of s 77(3)(a) to reopen the investigation and set aside the findings.[22]
[22]Affidavit of Moira Catherine Somerville, above n 2, being page 57 of the Court Book .
The respondent submits that the Determination also concluded that the requirements of s 77(3)(a) of the Act were not met by the following:
Ms Somerville queried why the police reports did not mention the mower’s seat being incorrectly fixed, backward facing, but I note that a mechanical inspection was conducted by a qualified police mechanical technician.[23]
[23]Affidavit of Moira Catherine Somerville, above n 2, being page 58 of the Court Book.
The respondent notes that these matters were also raised in the typed single page accompanying the application and signed by the appellant. The Determination expressly refers to the appellant’s application. Accordingly, the Determination had express regard to the matters being the subject of the Letter.[24]
[24]Affidavit of Sarah Elizabeth Gebert, above n 1, being page 69 of the Court Book .
The respondent refers to paragraph 38 of the appellant’s third affidavit which states that ‘…shortly after the accident, within a month or so Michael told me that just before Erin fell off the mower the seat fell off, his foot got stuck in the pedal and then the mower went back over Erin’s head’. This is more information than was provided to the Coroner’s Office, in the Letter. It is potentially new evidence and the Court is entitled to have regard to it.
(C) The Determination, pursuant to s 87A of the Act
Grounds of Appeal:
(1) In determining not to re-open the inquest and set aside the finding that Michael Somerville contributed to Erin Somerville’s cause of death, the Coroner did not consider all the material before him as a part of the appellant’s application. His Honour:
(a)erred by not finding that there were new facts or circumstances; and
(b)erred by finding it was not appropriate to re-open the investigation pursuant to section 77(3) Coroners Act (2008).
The appellant submits that the Determination does not refer to the contents of the Letter and says that the contents constitute new facts or circumstances.
The appellant submits it is in the interests of justice that only those who contribute to the cause of a person’s death be found to have so contributed.
In response to a question from the Court, the appellant submitted that Michael does not need to be involved because the appellant is seeking that the finding of contribution be removed. The appellant says that this does not prejudice Michael.
The respondent says that the appellant may make an application under s 87A(1) of the Act as the senior next of kin. The respondent otherwise refers to its submissions regarding s 84 of the Act as the appellant raises the same ground.
The respondent says that if the inquest were to be re-opened then it may involve seeking evidence from Michael.
Applicable Principles
Coroners Act 2008
When interpreting the Act, it must be read as a whole.[25]
[25]Thales Australia Limited v the Coroners Court & Ors [2011] VSC 133, [69] (Beach J)..
One intention of the Act is to avoid unnecessary duplication of inquiries and investigations.
7 Avoiding unnecessary duplication
It is the intention of Parliament that a coroner should liaise with the other investigative authorities, official bodies or statutory officers –
(a)to avoid unnecessary duplication of inquiries and investigations; and
(b)to expedite the investigation of deaths and fires.
Section 8 outlines factors to consider for the purposes of the Act.
8 Factors to consider for the purposes of this Act
When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following –
(a)that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;
(b)that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
(c)that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;
(d)that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
(e)that there is a need to balance the public interest in protecting a living or deceased person’s personal or health information with the public interest in the legitimate use of that information;
(f)the desirability of promoting public health and safety and the administration of justice.
[emphasis added]
Section 9 states that ‘the coronial system should operate in a fair and efficient manner’.
Appeals pursuant to s 83 of the Act
Section 83 of the Act provides a mechanism for appeal against the findings of a Coroner by a person with sufficient interest or an interested party.
83Appeal against findings of coroner
(1)A person with a sufficient interest in an investigation may appeal against the findings of a coroner in respect of a death or fire after an investigation to the Trial Division of the Supreme Court constituted by a single judge.
(2)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.
(3)Subject to section 86, an appeal under this section must be made within 6 months after the day on which the determination of the coroner is made.
[emphasis added]
Section 83(1) of the Act refers to a ‘person with sufficient interest’. ‘Sufficient interest’ is not defined in the Act, nor has it been in predecessor Acts.
There is authority to support the proposition that a close relation will be a person with sufficient interest.
It would seem to me that whether a person has sufficient interest in an inquest or the outcome of an inquest is a question of fact to be determined after consideration of the circumstances surrounding the death of the deceased. If a person is closely related to the deceased by birth or marriage or by having lived in a de facto relationship with the deceased, then, in my view, that person would have a sufficient interest.[26]
[26]Barci v Heffey [1995] VSC 13, [17].
Section 83(2) of the Act refers to ‘interested party’, who is defined in s 3, in relation to an inquest, as ‘a person granted leave under s 56 to appear at the inquest’.
56 Interested party
A coroner may give a person leave to appear as an interested party at an inquest if the coroner is satisfied that—
(a) the person has a sufficient interest in the inquest; and
(b)it is appropriate for the person to be an interested party.
Section 66 of the Act allows an interested party to appear or be represented, and examine or cross-examine witnesses and make submissions. The equivalent section in the 1985 Act was s 45:
45 Rights of interested persons
(1)A coroner may make available any statements that the coroner intends to consider to any person with a sufficient interest. (…)
(3)A person with a sufficient interest may appear or be represented by a legal practitioner or, with permission of the coroner, by any other person, and may call and examine or cross-examine witnesses and make submissions. (…)
Before an adverse finding is made against a person, the rules of natural justice will, at first sight, require a Coroner to accord that person natural justice.[27] Natural justice includes the right for a person to be heard in opposition to any potential finding which would prejudice their interests.[28]
[27]Annetts v McCann (1990) 170 CLR 596, 608 (Brennan J).
[28]Ibid 598-599 (Mason CJ, Deane and McHugh JJ).
Section 87 of the Act stipulates that, subject to s 87A, an appeal to the Supreme Court under Part 7 of the Act (which includes s 83 appeals) must be on a question of law. Section 87 also provides the Supreme Court with powers regarding the appeal, including the power to remit the matter to the Coroners Court.
87 Appeal to Supreme Court
(1)Subject to section 87A, an appeal to the Supreme Court under this Part is an appeal on a question of law.
(2)Subject to this Part, an appeal under this Part must be brought in accordance with the rules of the Supreme Court.
(3)The Supreme Court may make an order staying the operation of a determination that is the subject of an appeal under this Part.
(4)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.
(5)An order made by the Supreme Court on an appeal under this Part, other than an order remitting the matter for re‑hearing to the Coroners Court, may be enforced as an order of the Supreme Court.
[emphasis added]
A factual finding made without any evidence may give rise to a question of law. A Coroner may not make findings that are not open on the evidence. However, where there is evidence before a Coroner, the weighing of that evidence is a matter for the Coroner.
Remembering that one is looking at these proceedings from the perspective of whether there has been an error of law (and not whether there has been some error of fact), it is for the Coroner (and not this Court) to find the facts.[29]
…
Whilst different views may have been open on the facts involving either natural causes or an inability to determine the cause of death, ultimately the question was a question of fact to be determined by the Coroner having weighed all the evidence. Reasonable minds might have come to different conclusions (or indeed conclude that a particular determination was wrong in fact). However, that is not to say that a particular conclusion… was not open.[30]
[29]Thales Australia Limited v the Coroners Court & Ors [2011] VSC 133, [58].
[30] Thales Australia Limited v the Coroners Court & Ors [2011] VSC 133, [59].
Section 83(3) provides that, subject to s 86, appeals must be made within six months after the day on which the determination of the Coroner is made. In comparison, r 58.02(d) of the Old Rules contained a different time limit: 21 days.
Section 86 of the Act provides that the Supreme Court may grant leave to appeal out of time under s 84 of the Act (or other sections) if it is of the opinion that the failure to institute the appeal in time was due to exceptional circumstances and the Supreme Court is satisfied that the granting of leave is desirable in the interests of justice.
86 Supreme Court may grant an extension of time
The Supreme Court may grant leave to appeal out of time under section 78, 80, 81(3), 82, 83 or 84 if the Supreme Court –
(a)is of the opinion that the failure to institute the appeal within the specified period was due to exceptional circumstances; and
(b)is satisfied that granting the leave is desirable in the interests of justice.
Appeals pursuant to s 84 of the Act
Section 77(1) of the Act allows a person to apply to set aside the findings of a Coroner after an investigation. Subsections 77(2) and 77(3) of the Act provide the Coroners Court with the power to set aside or re-open an investigation if it is satisfied there are new facts and circumstances, and, it is appropriate to re-open the investigation.
77 Re-opening an investigation
(1)A person may apply to the Coroners Court for an order that some or all of the findings of a Coroner after an investigation (whether or not an inquest has been held) should be set aside.
(2)Subject to subsection (3), the Coroners Court may order that –
(a)some or all of the findings be set aside; and
(b)if the Court considers it appropriate, that the investigation be re‑opened.
(3)The Coroners Court may only make an order under subsection (2) if it is satisfied that –
(a)there are new facts and circumstances; and
(b)it is appropriate to re-open the investigation.
(4)For the purposes of an application made under this section, the Coroners Court must be constituted by the coroner who conducted the original investigation unless –
(a)the coroner who conducted the original investigation no longer holds the office of coroner; or
(b)there are special circumstances.
Section 84 of the Act provides a mechanism for appeal against a decision of the Coroners Court refusing to re-open an investigation under s 77. It provides that appeals are to the Supreme Court. Section 84(2) provides that, subject to s 86, that an appeal must be made within 28 days after the refusal by the Coroners Court.
84 Appeal against refusal by coroner to re‑open investigation
(1)If the Coroners Court refuses to re-open an investigation under section 77, a person who requested the Coroners Court to set aside some or all of the findings of the coroner may appeal against the Court’s determination to the Trial Division of the Supreme Court constituted by a single judge.
(2)Subject to section 86, an appeal under this section must be made within 28 days after the refusal by the Coroners Court.
Subject to s 87A, an appeal pursuant to s 84 must be on a question of law: s 87(1).
Appeals pursuant to s 87A of the Act
Section 87A of the Act provides another appeal mechanism. It allows appeals to the Supreme Court pursuant to s 84(1) other than on a question of law in respect of a refusal by the Coroners Court to re-open an investigation into a death. This appeal mechanism is limited to the senior next of kin of the deceased or a person with sufficient interest. The Supreme Court may allow such appeals if it is satisfied that it is necessary or desirable in the interests of justice to do so.
87A Appeal to Supreme Court in the interests of justice
(1)An appeal to the Supreme Court other than on a question of law may be made under section 82(1) in respect of a decision by a coroner to not hold an inquest into a death, or section 84(1) in respect of a refusal by the Coroners Court to re‑open an investigation into a death, if the appeal is made by –
(a)the senior next of kin of the deceased; or
(b)a person with sufficient interest.
(2)The Supreme Court may allow an appeal under subsection (1) if it is satisfied that it is necessary or desirable in the interests of justice to do so.
Rules
On 19 October 2015, when the Notice of Appeal was filed, the Supreme Court (General Civil Procedure) Rules 2005 (‘the 2005 Rules’) were in effect. On 21 March 2016, when the Amended Notice of Appeal was filed, the Supreme Court (General Civil Procedure) Rules 2015 (‘the 2015 Rules’) were in effect. Rule 1.05(1) of the 2015 Rulesprovides that they apply to every civil proceeding in the Court regardless of when commenced, and subject to any transitional or other provisions to the contrary. They are accordingly the applicable rules with respect to the appeal.
Part 7 of both the 2005 and 2015 Rules dealing with appeals under Part 7 of the Coroners Act was introduced into the 2005 Rules in 2009 by Statutory Rule 109 of 2009, commencing operation from 1 November 2009, prior to the Notice of Appeal being filed. Relevantly, the 2015 Rules did not introduce any further changes to r 58.36 or r 58.39.
Order 58 of the 2005 Rules and the 2015 Rules provides that an appeal out of time is taken to be an application for leave to appeal out of time under s 86 of the Act.
58.36 Appeal out time taken to be application for leave to appeal
An appeal brought out of time is taken to be an application for leave to appeal out of time under section 86 of the Coroners Act 2008.
Rule 58.39(7) of the 2005 Rules and the 2015 Rules requires the Associate Judge to determine whether leave to appeal is given, and, if leave is refused, the Associate Judge shall dismiss the appeal.
58.39 Directions
...
(7) If leave to appeal out of time is required—
(a)the Associate Judge shall determine whether leave to appeal is given; and
(b)if leave to appeal is refused, the Associate Judge shall dismiss the appeal.
Rule 58.39(8) of the 2015 Rules outlines the basis on which the Associate Judge may dismiss an appeal.
(8) The Associate Judge may dismiss the appeal if satisfied that—
(a)where applicable, the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;
(b)the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
(c)the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.
Timing
In the absence of a reasonably clear indication of intention to the contrary, an Act will be assumed not to have retrospective operation.[31]
[31]Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27 at 31. Commissioner for Corporate Affairs v X and Y [1987] VR 460 at 464.
The presumption against retrospectivity does not operate with respect to statutes containing procedures enforcing already existing appeal rights.
It has been held that although, in the absence of some reasonably clear indication of intention to the contrary, an Act should not be construed so as retrospectively to affect particular rights or liabilities which had crystallised before it was passed, an Act which merely alters the procedure by which they may be put into effect governs the procedure for enforcing already existing rights including the procedure in already pending actions.[32]
[32]Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27 at 31-32.
The right of appeal itself, should not, however, be considered merely procedural.
The word ‘procedure’ may have a wide or narrow sense according to its context. It may mean the whole field of adjective law including the law of limitation of actions, or simply the steps to be taken in a Court of Justice for the purpose of litigating a matter. … although rules of law relating to appeals are procedural in the sense of being adjective law concerned with the manner in which substantive rights and obligations may be finally ascertained and enforced, it was held in…that they are not merely procedural for the purpose of the rule now in question. If an action be commenced whilst a right of appeal lies, a vested right of appeal comes into existence, and a subsequent Act taking away the right of appeal in general terms would have more than a procedural operation if it were treated as destroying the already vested right…[33]
[33]Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27 at 32. (Citations omitted and emphasis added.)
Additionally, the presumption against retrospectivity does not operate to exclude past events from being used as a basis for future proceedings. That is, ‘the presumption against retrospective operation does not direct itself to legislation which merely uses past acts as a foundation for future action.’[34]
Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was completed and rested on events or transactions that were otherwise past and closed.[35]
[34]Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 860, cited in Commissioner for Corporate Affairs v X and Y [1987] VR 460 at 465.
[35]Maxwell v Murphy (1957) 96 CLR 261 at 267 (Dixon CJ), cited in Commissioner for Corporate Affairs v X and Y [1987] VR 460 at 465.
Consideration
Given the findings below, it is not necessary to consider Rule 58.39(8) of the 2015 Rules.
(A) The Investigation Findings, pursuant to s 83 of the Act
Erin’s mother, the appellant is a person with ‘sufficient interest’ within the meaning of s 83(1) of the Act.
The Investigation Findings were given more than 26 years ago. At the time, under the Old Rules, there was a 21 day time limit for appeals to this Court.
Section 83 provides that appeals must be brought within six months after the date on which the determination of the Coroner is made.
The first question that arises is whether the plaintiff can rely on s 83 given that it was enacted subsequent to the Investigation Findings. Section 83 is not limited, on its terms, to decisions made after its promulgation. Indeed, if it was, it would not be capable of operating until six months after it became operative. Similarly, s 86 does not contain such a limitation either. It is not date limited. The presumption of retrospectivity will not operate to exclude past events from being used as a basis for future proceedings. In this case, it will not operate to exclude the Investigation Findings, which were made under the 1985 Act, from being the subject of an appeal under s 83 and application for an extension of time under s 86. That is, this is a case of ’legislation which merely uses past acts as a foundation for future action’.
Further, r 58.36 of the 2005 Rules, which provides (as it does under the 2015 Rules) that an application out of time is taken to be an application for leave to appeal under s 86, was also enacted subsequent to the Investigation Findings. The latter was, however, in place at the relevant time, namely at the time the appeal was instituted.
The question then is whether the appeal satisfies the requirements in s 86. Section 86 permits the Court to grant leave to appeal out of time under s 83 if two requirements are met. First, the Court is of the opinion that the failure to institute the appeal out of time was ’due to exceptional circumstances’. Second, the granting of leave to appeal is ’desirable in the interests of justice’.
The evidence in the appellant’s third affidavit outlines a difficult and tragic history. The appellant deposes that she was unwell and hospitalised at various times from shortly after Erin’s death until October 2014. There were also long periods of time when she was not hospitalised, for instance from 1997 to ‘the mid 2000’s, it may have been 2007’[36]. The evidence in the appellant’s third affidavit refers to the effect of taking prescribed medication. The appellant also deposes as to family breakdown and violence in 1989 and her subsequent divorce from her husband in 1991. The appellant further deposes that she was a victim of violence in the period between 1994 and 2006. The Court is not satisfied that either or both of the appellant’s medical history, or the history as to family breakdown and violence, lead to the conclusion that the failure to institute the appeal is due to exceptional circumstances. Even if they were to be categorised as exceptional, and the Court is not satisfied that they are, they do not explain the delay of more than 26 years.
[36]Affidavit of Moira Catherine Somerville affirmed 16 August 2016.
In the event the analysis on this is incorrect, the second question is considered. That is, whether the appeal is ‘desirable in the interests of justice’. The Court does not consider that it is for the following reasons. Michael is a person directly affected by the orders sought. However, his voice was not heard in these proceedings. The Court was informed that Michael was not given notice of the proceedings. If the Court were to require notice to be given to him, it would have the effect of drawing him into proceedings which he has not initiated. This may exacerbate his distress. It is no answer to these issues to say that the appellant is seeking that the order concerning his limited contribution to the cause of death be set aside, and that is not prejudicial to him. If such an order were to be made, it would need to be conveyed to him, and he may be distressed by the re-opening of issues that occurred when he was 10 years old.
A factor to consider in exercising a function under the Act is that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death. Similarly, re-agitating issues concerning Erin’s death after more than 26 years may exacerbate distress. One of the purposes of the Act is to avoid unnecessary duplication of inquiries and investigations. As for the proposal to re-open the inquest, as well as Michael, there are other family members who may be distressed at the inquest being re-opened, including Erin’s other siblings. If the inquest were to be re-opened, there is also the potential for adverse findings. This may further exacerbate the distress of the family members of the deceased.
Importantly, the effluxion of time – more than 26 years – is such that it would not be desirable in the interests of justice to make the orders sought. The appellant was not a witness to the accident. There is a real likelihood that witnesses may be deceased or unable to be located. Even if they could be located, the effluxion of time will affect their memories of the incident. The site of the accident may not be in the same condition, and there is a real likelihood that the mower in question is no longer in existence or in a changed condition, because of the effluxion of time. The Coroner made reference to some of these issues in paragraph 16 of the Determination.
The Court has carefully considered whether the grounds of appeal support a finding that it would be in the interests of justice to allow the appeal. There was evidence upon which the Coroner made the Investigation Findings. The evidence is outlined in the inquest file. The weighing of that evidence was a matter for the Coroner.
As to the ground of appeal that the Coroner denied Michael natural justice in that, as a person at risk of an adverse finding, he was denied the opportunity to be heard, there is no evidence that he, or anyone on his behalf, sought to be heard. Indeed, the transcript evidence suggests that he probably did not seek to be heard, and there is no evidence that he had separate representation. The inquest file indicates that the police sought to obtain a statement from him in January 1989, but Michael’s father, John Somerville, indicated he was still under trauma over the incident involving Erin, he was under strict specialist therapy over the accident and that any attempt to divulge information at that early stage may be detrimental to his mental state and treatment.[37] A letter from Michael’s father to police the following month, in February 1989, requested the coronial inquiry be held in Melbourne (not Wonthaggi) as due to the tragic and horrific nature of Erin’s death, he and the appellant had extreme reluctance in ever venturing to or in the vicinity of Wonthaggi. He requested the inquest be held in Melbourne, the place of Erin’s birth and upbringing, to minimise the anguish to the family.[38] This evidence indicates that the family were clearly anguished at this point in time, and Michael traumatised. The inquest hearing occurred several months later, on 1 May 1989. Whether or not the Coroner should have taken a more proactive approach, put Michael on notice of a potential adverse finding, and ensured that he was given an opportunity to be heard, is a matter that is likely to be considered with a different lens now, following the decision of Annetts v McCann (after the inquest) and with the growth in jurisprudence on issues of natural justice. It cannot be said that at the time the Coroner made her decision, she erred by either denying Michael an opportunity to be heard, or failing to give him such an opportunity. However, considering the issue through the lens of the law as it currently is, it would be considered an error of law. That is, applying the law as it is today, Michael should have been put on notice of a potential adverse finding and have been given the opportunity to be heard. This is an important factor to consider in weighing up whether it is in the interests of justice to allow the appeal. However, it is outweighed by the factors outlined in paragraphs [90]-[92] above. In conclusion, it is not in the interests of justice to allow the appeal, for the reasons outlined in the paragraphs [90]-[92] above.
[37]Letter from Senior Constable Earl for the attention of Senior Constable Lawler dated 16 January 1989, Affidavit of Sarah Elizabeth Gebert, above n1, being page 93 of Court Book; Letter from Senior Constable Lawler, above n 14.
[38]Letter from John Somerville to Senior Constable Earl dated 11 February 1989, Affidavit of Sarah Elizabeth Gebert, above n1 being page 122 of Court Book..
(B) The Determination, pursuant to s 84(1) of the Act
Section 77 refers to a ‘person’ being able to bring an appeal under s 84.
Section 77(3) requires that there be ‘new facts and circumstances’ to re-open an investigation, and that it be appropriate.
Subject to s 87A, an appeal pursuant to s 84 must be on a question of law: s 87(1). The appellant says the question of law is that, had evidence that the mower seat was broken and not properly affixed been adduced at the inquest, there would have been insufficient evidence for the finding that Michael contributed to the cause of Erin’s death. This is not a question of law in respect of the Determination; it is a question of law in respect of the Investigation Findings. Accordingly, no error of law is identified in respect of the Determination.
The Court has nevertheless considered the appellant’s submission that the Coroner erred by not finding there were new facts and circumstances. The appellant’s submission is that the Coroner did not consider all the material before him as part of the appellant’s application. Specifically, that the Coroner did not consider the Letter. The Court rejects the submission for the following reasons. Although the Determination does not explicitly refer to the Letter, it does consider the substantive issues raised by it. Paragraph 6 of the Determination specifically identifies the appellant’s concerns in respect of the mower seat. Paragraph 14(ii), (iii) and (iv) of the Determination specifically responds to those concerns.
The appellant’s submission that the Coroner erred by finding it was not appropriate to re-open the investigation is rejected. The Coroner made no such finding. In paragraph 15 of the Determination, it is noted no such finding is necessary. Nor was it given that the Coroner had found there were no new facts and circumstances.
(C) The Determination, pursuant to s 87A of the Act
The appeal pursuant to s 87A relates to the Determination. A question of law need not be identified in respect of an appeal pursuant to s 87A.
In the appellant’s third affidavit, she deposes that she had a conversation with Michael within a month of the accident and he said that ’just before Erin fell off the mower the seat fell off, his foot got stuck in the pedal and then the mower went back over Erin’s head’. This evidence was not contained in the materials that she filed with the Coroners Court. A question arises then as to whether the appeal under s 87A should be allowed on the basis of this new evidence.
The appellant’s other submissions regarding s 87A rely upon the content of the Letter as constituting new facts or circumstances. The Court refers to the reasons in paragraphs [96]-[98] above and rejects those submissions.
The appellant submits that it is in the interests of justice that only those who have contributed to the cause of a person’s death be found to have done so. However, this submission is misconceived because it is directed at the Investigation Findings. The appeal under s 87A is in respect of the Determination.
Section 87A(2) provides that an appeal may be allowed if ’it is necessary or desirable in the interests of justice to do so’. For the reasons in paragraphs [89]-[93] above, the Court does not consider it necessary or desirable in the interests of justice to allow the appeal pursuant to s 87A.
Conclusion
The appeal proceeding must be dismissed.
---
3
4
0