Officers C, D and E v Coroner's Court at Hamilton
[2021] NZHC 749
•12 April 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2020-419-000201
[2021] NZHC 749
UNDER THE Coroners Act 2006 IN THE MATTER OF
a review pursuant to s 126 of the Coroners Act 2006 of a ruling of Coroner Robinson dated 31 July 2020
BETWEEN
OFFICERS C, D and E
Applicants
AND
CORONER’S COURT AT HAMILTON
Respondent
AND
COMMISSIONER OF POLICE
First Interested Party
AND
BEVERLEY TAYLOR
Second Interested Party
AND
MS A
Third Interested Party
Hearing: 2 February 2021 Appearances:
Susan Hughes QC for the Applicants
Respondent abides the decision of the Court Daniel Jones for the First Interested Party
Rowan Butler as Counsel Assisting
No appearance for Second and Third Interested PartiesJudgment:
12 April 2021
JUDGMENT OF MOORE J
This judgment was delivered by me on 12 April 2021 at 4:45 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
OFFICERS C, D and E v CORONER’S COURT AT HAMILTON & ORS [2021] NZHC 749 [12 April 2021]
Introduction
[1] In mid-2016 a Police officer, anonymised for present purposes as “Officer D”, fatally shot Michael Taylor at a rural property near Paeroa. The shooting occurred after Mr Taylor allegedly threatened Officer D with a machete and a slasher blade. At the time, Officer D was accompanied by two other Police officers, being Officers “C” and “E” who are co-applicants to the present proceedings.
[2] The Police investigated the circumstances of Mr Taylor’s death and determined that Officer D had acted in lawful self-defence. The Independent Police Conduct Authority (“the IPCA”) also carried out its own investigation. It reached the same conclusion. Mr Taylor’s family appears to dispute both the Police and IPCA findings.
[3] At the conclusion of the IPCA investigation, Coroner D P Robinson opened an inquiry into the death of Mr Taylor. Under s 120 of the Coroners Act 2006 (“the Act”) he issued the Police with a notice (“s 120 Notice”) requiring the production of the personal files for Officers C, D and E. He directed the production of various classes of documentation including, for present purposes, firearms training records and copies of all records concerning any adverse findings relating to the use of force or tactical decision making.
[4] Although the individual officers were not served, the requisition was brought to their attention by their employer, the Police. The firearms training records were produced but in respect of the other records, the Officers’ counsel filed a memorandum objecting to the notice.
[5] The Coroner dismissed the Officers’ objection on the basis that none of the statutory grounds for opposition under s 121 of the Act had been made out.
[6]The Officers now apply to this Court for a review of the Coroner’s decision.
Background
[7] On the morning of 10 June 2016, Mr Taylor’s partner, Ms A, called 111 to report that after an argument, Mr Taylor had picked up a machete and left the caravan
they were living in. A tactical decision was made by the Police dispatchers that the Officers should attend with firearms.
[8] The Officers’ account is that when the first Police car arrived at the address, approximately 20 minutes after the emergency call, Mr Taylor began to approach them while carrying a machete in one hand, and what has variously been described as a sickle or slasher, in the other. In the photographs presented at the hearing before me, the item appears to have been a slasher blade. The first Police car to arrive contained two officers; Officer D seated in the front passenger seat and Officer E in the driver’s seat. Officer C was the sole occupant and driver of the second Police car to arrive. It stopped approximately 15 metres behind the first car.
[9] The Officers saw an armed Mr Taylor striding purposively towards the left or passenger side of the first Police car. Through the closed window, Officer D shouted at Mr Taylor to put his weapons down. Instead of complying, Officer D’s account is that Mr Taylor appeared to be getting increasingly agitated. Officer E contemplated getting out of the Police car and presenting his taser at Mr Taylor, but events began to unfold too quickly.
[10] Officer D reports that he considered himself to be very vulnerable. He was seated in the Police car in close proximity to an advancing Mr Taylor carrying the machete and slasher blade. Officer D believed Mr Taylor posed an immediate threat of serious bodily harm or death to him and Officer E. Officer D’s only protection was the Police car’s front passenger window, which was closed.
[11] Due to these perceived risks, Officer D drew his pistol and, from behind the car’s closed window, aimed it at Mr Taylor. After he told Mr Taylor to “stand off” Mr Taylor threw the machete at the front passenger door. It struck the door and window but did not break the glass.
[12] Then Officers D and E both saw Mr Taylor swing his right arm back preparing to strike the passenger window with the slasher blade. According to Officer D, Mr Taylor was so close to him that he was unable to see his face above the car’s roof line.
[13] Officer E said he shouted to Officer D, “Shoot him, shoot him!”. Given the escalating situation and Officer D’s belief that Mr Taylor intended to kill him with the slasher blade, he raised his Glock pistol and fired two shots in quick succession at Mr Taylor’s torso through the closed window. Still fearing for his life, he fired a further two shots following which Mr Taylor dropped the slasher blade, lowered his hands and according to the Officers, began to walk towards the front of the car.
[14] Officer C, seated in the car behind, heard the shots and saw Mr Taylor retreating. Mr Taylor continued walking. Officer E opened the driver’s door and presented his taser at Mr Taylor. He instructed Mr Taylor to get on the ground. At this point, Mr Taylor toppled forward, face down. Despite this, he resisted being hand cuffed. He was searched. Two knives were removed from his clothing. At this point, Mr Taylor began to drift into unconsciousness. The hand cuffs were removed, and the Officers assessed him for his injuries. They started CPR and continued this until the ambulance arrived about 25 minutes later. Mr Taylor was pronounced dead at the scene.
[15] The subsequent post-mortem found that only one of the bullets fired caused the fatal injuries. Other forensic examinations were undertaken including one of the first Police car, in which Officers D and E had been travelling. Four empty bullet cartridges were located inside the Police car. Damage to the car was consistent with the accounts given by the Officers. The post-mortem examination and ESR analysis established that Mr Taylor was facing the front passenger door when the first shot was fired. This conclusion was consistent with the Officers’ accounts and the taser video footage.
Procedural background
[16] On 21 September 2017, the IPCA completed its report into the shooting. On 25 June 2018, the Police’s own investigation was concluded. Both investigations determined that Officer D had acted in defence of himself and/or another in shooting Mr Taylor, and was thus not criminally liable.
[17] On 29 October 2019, Coroner Robinson issued a Minute in anticipation of a pre-inquest conference scheduled for 31 January 2020. Inter alia, he directed the
provision of various documents from the Police including use of force reports, the contemporary notes of Officers C, D and E and all applicable Police policies.
[18] On 13 November 2019, Coroner Robinson issued the Police with the s 120 Notice which requested the provision of the personal files for each of Officers C, D and E, relevant for present purposes, as comprising:
(a)firearms training record; and
(b)copies of all records concerning any adverse findings relating to their use of force or tactical decision-making.
[19] The s 120 Notice was sent to the Police, care of the Hamilton Criminal Investigation Branch. It was marked for the attention of Detective Sergeant van Dongen. The request was not served on Officers C, D or E who were parties to the inquiry and separately represented by counsel, Ms Hughes QC. Presumably this was because the Coroner believed that the information he was seeking was in the possession of the Police, as the Officers’ employer.
[20] Counsel for the Police, then the Crown Solicitor for Hamilton, considered that because the request was for the Officers’ personal information and its release might adversely affect them, the proper course was to pass the request to Ms Hughes for her to lead any opposition to the s 120 Notice. Initially, counsel for the Police maintained a neutral position relative to the Coroner’s request but later supported the Officers in their opposition.
[21] As noted, the Police provided the Coroner with the training records, but indicated that the Officers opposed the disclosure of any records concerning any adverse findings relating to their use of force or tactical decision-making. The Police advised that any relevant material of that nature would be placed in an envelope and provided to the Coroner once the Officers’ objections had been determined.
[22] On 29 November 2019, Ms Hughes filed a formal objection to the s 120 Notice under s 121(1) of the Act on the grounds:
(a)the material sought was not necessary for the purpose of the inquiry;
(b)the records were not the property of the Police but were the property of the individual Officers, as such the s 120 Notice had been directed to the wrong party; and
(c)employment privilege applied to any such material.
[23] Ms Hughes also challenged the scope of the inquiry. She submitted that the Coroner should restrict himself only to matters not already determined by the IPCA.
[24] On 5 February 2020, counsel for the Police filed a memorandum supporting the Officers’ opposition to the s 120 Notice and their arguments as to the scope of the inquiry.
[25] Counsel then assisting the Coroner1 and the family’s representatives submitted that the material in question should be provided to the Coroner.
[26] On 12 February 2020, the Coroner issued a Minute setting out certain preliminary observations which included:
(a)questions of preparation, tactics and the decision to fire fell within the scope of the inquiry;
(b)any history of the use of excessive force, or poor tactical decision- making might be relevant to the evaluation of a particular witness’s evidence. The weight to be given to such evidence would be a matter of submission;
1 Mr C T Gudsell QC.
(c)opposition to the s 120 Notice must be limited to the statutory grounds set out in s 121(2) of the Act;
(d)employment privilege is not a recognised privilege attracting protection under s 121(2)(a);
(e)opposition is likely restricted to the latitude afforded to a Coroner in considering whether material is “necessary” for the purposes of the inquiry, noting that the jurisdiction is inquisitorial; and
(f)nothing in the Act appears to preclude a Coroner from issuing a s 120 notice simply because another investigating authority has reached conclusions on matters in issue in the coronial inquiry.
Coroner’s ruling
[27] On 31 July 2020, the Coroner issued his ruling following a hearing on 4 June 2020. This dealt with various pre-hearing matters including the s 120 Notice. After setting out the relevant provisions of the Act, the Coroner observed that in determining a claim for refusal to give or produce the information sought in the s 120 Notice, he was limited to considering only the three statutory grounds listed in s 121(2). He dismissed the Officers’ opposition on the basis that none of the listed grounds of objection had been made out. The key elements of his ruling are set out below:
(a)s 121(1)(a) of the Act provides that notice of objection to a s 120 notice must be filed by the person who was served with the notice, within five working days. In this case, only the Police were served. Therefore, only the Police had standing to object. They did not object within the statutory timeframe and thus there was no valid objection on which the Coroner could rule;
(b)but, in any event, the Coroner determined that objection to a s 120 notice may only be made on the three grounds set out in s 121(2). He found that none of the grounds of objection had been made out.
Furthermore, the fact that the Police and the IPCA had determined Officer D was justified in shooting Mr Taylor did not operate as a bar or to oust the Coroner’s jurisdiction. He observed that whether the Officer D’s decision to fire was found to be justified by other agencies was “not relevant to any purpose of the [Coronial] inquiry”;
(c)the Officers’ arguments under s 121(2) relating to privilege, privacy and the Employment Relations Act 2000 were also untenable; and
(d)the Officers’ argument as to necessity/relevance did not fall within any of the statutory grounds for objection and could therefore not support a valid objection.
Present proceedings
[28] On 10 August 2020, Ms Hughes commenced the present proceedings to review the Coroners Court’s decision under s 126 of the Act. She did so by way of notice of proceeding and statement of claim. The grounds she now advances on review vary slightly from the objections advanced in argument before the Coroner. They are that:
(a)the Officers had standing to object to the s 120 Notice and should, in any event, have been served with it;
(b)the Coroner did not identify an issue for the inquest which requires the provision of the information sought; and
(c)the past behaviour of the Officers cannot inform the issue of whether they were justified in the circumstances in shooting Mr Taylor.
[29]Ms Hughes seeks an order revoking the s 120 Notice.
Legal framework
[30] The relevant provisions are found in Part 4 of the Act. Section 120 sets out the mechanism by which the Coroner may request information, which is reproduced in full below:
“120 Coroner may by written notice require person to supply information or documents or other things
(1)A coroner who considers it necessary for the purposes of an inquiry the coroner has opened under this Act may, by written notice served on a person, require that person, within a time specified in the notice,—
(a)to give the coroner any information or class of information specified in the notice; or
(b)to produce to the coroner, or to a person specified in the notice acting on the coroner’s behalf in accordance with the notice, any document or class of documents or other thing specified in the notice.
(2)The person on whom the notice is served must give or produce a thing (whether the thing is information, a class of information, a document, a class of documents, or any other thing) sought by the notice, except to the extent that the person is excused from doing so by section 121.
(3)Information given in response to a notice under subsection (1)(a) must be given in writing and,—
(a)if given by a natural person, must be signed by the person; and
(b)if given by a body corporate, must be signed by an officer authorised to sign on behalf of the body corporate.
(4)This section does not limit or affect a coroner’s powers under any other enactment, for example, under section 200 (coroner may call for report on fatal accident) of the Health and Safety at Work Act 2015.”
[31] Under s 121 the Act creates the ability for a party to refuse to comply with a s 120 notice. The grounds for non-compliance are set out in s 121(2) which is reproduced in full below:
“121 Grounds for refusing to comply with written notice
(1) A person on whom a notice under section 120 is served is not required by section 120 to give or produce a thing sought by the notice if, and to the extent that,—
(a)the person claims within 5 working days after service of the notice that any or all of the grounds in subsection (2) apply to the thing; and
(b)the person’s claim has not been considered and dismissed by the coroner who issued the notice or by another coroner acting in his or her place, or has been so considered and dismissed, but the dismissal is the subject of, or has been revoked on, an application for review (whether under section 126 or otherwise).
(2)The grounds referred to in subsection (1) are that the giving or production of the thing sought by the notice—
(a)would, if the thing were sought from the person as a witness giving evidence in a court of law, be prevented by a privilege or immunity that the person would have as a witness, or as counsel, in that court:
(b)is prevented by an enactment, rule of law, or order or direction of a court that prohibits or restricts the making available of the thing, or the manner in which the thing may be made available:
(c)would be likely to prejudice the maintenance of the law (including the prevention, detection, investigation, prosecution, and punishment of offences, and the right to a fair trial).”
[32] Where a Coroner has dismissed a party’s objection to a s 120 notice, that party may apply to the High Court for a review of the dismissal under s 126.
“126 Review of dismissal of claim that section 121(2) applies
(1)A person may, within 5 working days of the dismissal, apply to a High Court Judge for a review of the dismissal if—
(a)the person made a claim of the kind specified in section 121(1)(a) or section 125(a) or section 127(4); and
(b)the claim was dismissed by a coroner or a District Court Judge, as provided in section 121(1)(b) or section 125(b) or section 127(4)(a)(i) or (ii).
(2)The claim must, for the purposes of sections 121 and 125 and 127, be treated as not having been dismissed by the coroner or District Court Judge for the 5 working days referred to in subsection (1) of this section.
(3)The High Court Judge may (as the case requires), in the Judge’s absolute discretion and on any ground the Judge thinks fit, confirm, modify, or revoke the dismissal.”
Submissions
[33] The respondent gave notice of its intention to abide this Court’s decision and I excused appearances. The second interested party is Mr Taylor’s mother. The third interested party is Ms A. Neither sought to be heard on the review.
[34] I received written and oral submissions from the applicants, the first interested party and counsel appointed to assist this Court. I turn now to consider those submissions.
Applicants
[35]The Officers seek the following orders:
(a)a declaration that the Coroner’s discretion to issue a s 120 notice is not unfettered and that any such notice must be relevant to a purpose of the inquest;
(b)a ruling that the documents sought by the s 120 Notice are not relevant; and
(c)a direction that the s 120 Notice seeking to access personal files must be served on the individual named; that such have standing and are entitled to challenge the s 120 Notice.
[36] Ms Hughes applies for the orders to be revoked. Observing that there is no case law dealing with the applicable principles for a review under s 126, she
necessarily resorts to first principles. She points out that s 120 permits the Coroner to issue a notice when he/she considers it “necessary for the purpose of an inquiry”. She submits that s 7 of the Evidence Act 2006 (“the Evidence Act”), which provides that evidence which is not relevant is not admissible in a proceeding, must necessarily provide the overarching principle which informs the issue of necessity under s 120. She submits that access to the Officers’ records is neither relevant nor necessary for any purpose in the inquest, because the actions of Officer D must be judged first in the circumstances as he then understood them to be, and secondly, in considering whether the force used was reasonable in those circumstances. She points out that the assessment of this subjective judgment was made in favour of the Officer both by the Police in their investigation, and the IPCA. Both concluded that Officer D had discharged his firearm in self-defence. Thus, Ms Hughes submits, whether any of the Officers’ records contain adverse findings relating to use of force or tactical decisions on previous occasions, can have no relevance to the Coroner’s task given the focus of the inquiry; that is the events at the time of the shooting.
[37] Ms Hughes points out that the Officers were permitted to carry and discharge firearms. In doing so, their actions were required to be legally justified. Both the Police and the IPCA have objectively determined that the amount of force used by Officer D in defence of himself and others was appropriate.
Police
[38] For the Police, Mr Jones broadly adopted Ms Hughes’ submissions. He first submits that the principles of natural justice required the Coroner to hear affected parties on well-founded objections to the s 120 Notice despite not being served, or where the objection fell outside those grounds listed in s 121. In the present case, the Coroner should have allowed the Officers to advance their objections as interested parties because not only does natural justice so demand, but also because s 120 does not preclude it. He says their objections were well-founded and should have been upheld.
[39] The material sought by the Coroner and objected to by the Officers cannot be relevant to any issues which will be engaged at the inquest. Mr Jones submits that the
starting point must be the findings of the IPCA. If there was evidence to suggest the application of excessive force or lack of appropriate tactical decision-making, Mr Jones conceded it would be difficult to oppose the requisition. But on the present facts, absent any alternative contrary credible narrative, the s 120 Notice should be set aside.
[40] Relatedly, Mr Jones submits only Officer D fired any shots. Even if it was conceivably necessary for the Coroner to make adverse findings in relation to Officer D, Mr Jones questions what possible factual basis might justify a similar request in respect of Officers C and E, who used no force of any kind. He also points out that not all the Officers were involved in tactical decision-making; a critical distinction which the Coroner failed to draw.
Counsel assisting the Court
[41] Mr Butler2 appeared as counsel assisting the Court. He assumed the role of contradictor. Preliminarily, he first questioned whether the present proceedings should have been commenced by way of statement of claim rather than by originating application. He accepted that nothing turned on how the proceedings were initiated. He also considered whether the Officers have standing to challenge the s 120 Notice, finding that they did. As with the other parties, his submissions focused primarily on the issue of necessity and relevance.
[42]Mr Butler made four key submissions.
[43] First, expanding on the matter of standing, he submits that while the language of s 121, if interpreted narrowly, would suggest that only the person served with a s 120 notice has standing, such a narrow interpretation would lead to perverse outcomes which Parliament could never have intended. It could result in injustice, as in the present case, where only the party served could be heard. He submits that s 121 and, in particular, the interpretation of “person” requires a workable and fair meaning consistent with s 27 of the New Zealand Bill of Rights Act 1990 (“NZBORA”), which affirms the right to the observance of the principles of natural justice before any
2 Mr Butler was appointed by Downs J by Minute dated 28 October 2020.
tribunal. He submits that to deny the Officers the right to be heard on an issue which so plainly affects their interests would be contrary to the principles of natural justice.
[44] Secondly, Mr Butler considered whether any of the s 121(2) grounds for refusal to comply are made out. He notes that the employment privilege originally claimed by the Officers under s 121(2)(a) no longer appeared to be pursued. Next, he turns to consider Ms Hughes’ submission that, in essence, s 7 of the Evidence Act founds relevance as a ground for refusal under s 121(2)(b), in that production is prevented by an enactment or rule of law. While submitting the argument was not framed in that way, it amounted to such a submission. Mr Butler submits that little or no reliance could be placed on s 7 because s 79(1) of the Act introduces an “any evidence” rule. Further, s 79(2) prohibits a Coroner from admitting any evidence for the purpose of an inquiry unless satisfied its admission is necessary or desirable for the purposes stated in s 57, which include not only the causes and circumstances of the death,3 but also the power to make recommendations or comments.4
[45] Thirdly, and relatedly, Mr Butler submits that relevance may found a basis for refusal under s 121 notwithstanding that the section makes no explicit reference to relevance. He highlighted the broad and non-exhaustive terms of s 121(2) which affords a s 120 notice recipient meaningful objection rights. He submits there are several arguments open to the Officers under s 121(2)(b). For example, the Officers could argue that the s 120 Notice constitutes a search or a seizure. Unless the Coroner had reasonable cause to require the requested information, the “search” would be unreasonable and in breach of s 21 of the NZBORA and thus prevented under s 121(2)(b).
[46] He also submits that the “maintenance of law” ground under s 121(2)(c) could be interpreted to permit materiality considerations. He submitted it was open to the Officers to argue that production of the requested information would prejudice their rights at the inquest. Further still, the fact that only “adverse” records were sought could demonstrate a possible infringement of their fair trial rights at the inquest.
3 Coroners Act 2006, ss 57(2)(d) and (e).
4 Sections 57(3) and 57A.
[47] Then, Mr Butler focused on whether relevance and/or necessity may be considered as part of this Court’s s 126 review. He submits that s 126 is sufficiently broad to enable the Court to consider on review issues of relevance and materiality, even if none of the statutory grounds under s 121 have been made out.
[48] In summary, Mr Butler submits that “being as contradictory as [he could]” it was difficult to see any basis justifying necessity or relevance relative to Officers C and E, and in respect of Officer D at best only “a slim basis”. However, absent reasons by the Coroner any such “… slim basis almost vanishes”. He submits that the Coroner might, in fact, have been on firmer ground had he asked for a broader set of documents or policies but the “very bespoke” requisition seeking only information adverse to the reputations of the Officers becomes very difficult to justify without reasons.
Discussion
[49] There are eight issues which call for determination on this review. They are as follows:
(a)Are these proceedings rendered null through their initiation by statement of claim rather than originating application?
(b)Was the s 120 Notice procedurally sound?
(c)Should the Officers have been served/issued with the s 120 Notice, and did they have standing to object it?
(d)Did the Officers’ refusal to comply with the s 120 Notice meet the requirements for such refusal under s 121?
(e)Is relevance/necessity a valid ground of objection under s 121?
(f)If relevance/necessity is not a valid ground for objection, can this Court still consider it pursuant to its powers of review under s 126?
(g)If it is determined that this Court can conduct a review, what is the test for “necessary” information requested by the Coroner?
(h)Was the information sought by the s 120 Notice necessary/relevant?
[50]I shall deal with of these issues in turn.
(a)Are these proceedings rendered null through their initiation by statement of claim rather than originating application?
[51] This issue appears to have been identified by Mr Butler and is properly brought to my attention as a preliminary, jurisdictional and procedural point. The question is whether, by commencing these proceedings by way of notice of proceeding and statement of claim rather than by originating application, they are a nullity or, for some other reason, are so fatally flawed that the orders sought cannot or should not be made.
[52] Rule 19.2(d) of the High Court Rules 2016 (“the Rules”) expressly requires applications for review under s 126 of the Act to be made by way of originating application. Thus, the way these proceedings were commenced was irregular and contrary to the Rules.
[53] However, the Rules contemplate such errors and provide for the means by which they may be remedied. For example, where a proceeding which should have been commenced by statement of claim was commenced by originating application a Judge may direct the parties to file a statement of claim and statement of defence.5 However, there does not seem to be a reciprocal corrective provision where, as in the present case, proceedings which should have been commenced by originating application were commenced by statement of claim. In any event, I do not regard that as an impediment to dealing with this review. My reasons follow.
[54] First, this is not a case where contentious findings of fact are to be made following oral evidence and cross-examination. Any determination by this Court does
5 High Court Rules 2016, r 19.5A.
not require the making of credibility findings which is presumably the reason the Rules prescribe such reviews be initiated under Part 19.6
[55] Secondly, none of the interested parties have sought to take the point that the review should have been commenced under Part 19. That is unsurprising. The competing arguments are plainly apparent and discernible on the material filed. They have been fully ventilated in this Court. There can be no prejudice to any party nor has any been claimed.
[56] Thirdly, and in any event, r 1.5(1)(b)(i) expressly provides that a failure to comply with the requirements of the Rules does not nullify the proceeding. Rule 1.5(3) provides that the Court must not wholly set aside any proceeding or the originating process by which the proceeding was begun on the ground that the proceeding was required by the Rules to be begun by an originating process rather than the one employed.
[57] Fourthly, I note that Whata J, dealing with a comparable review provision in the Act, saw no procedural impediment to considering the merits of a review which was initiated by way of judicial review under the Judicial Review Procedure Act 2016 (“the Judicial Review Procedure Act”) when, in fact, it ought to have been commenced by originating application by virtue of r 19.2(d).7
[58] I am thus satisfied that notwithstanding the procedural irregularity by which these proceedings were initiated, they are not a nullity.
(b)Was the s 120 Notice procedurally sound?
[59] I am satisfied the s 120 Notice was procedurally sound. My reasons follow. The wording of s 120 is central. Section 120 permits a Coroner, by serving a written notice on a person, to require them to supply information or documents the Coroner considers “necessary for the purpose of an inquiry”.8 In the present case the Coroner issued the s 120 Notice to the Police. This was because it was the Police, as the
6 Compare Jones v O’Keeffe [2019] NZCA 222, [2019] NZAR 1448 at [51].
7 Gravatt v The Coroner’s Court at Auckland [2013] NZHC 390, [2013] NZAR 345.
8 Coroners Act 2006, s 120(1).
Officers’ employer, who had custody of the information he sought. The s 120 Notice was issued in accordance with the legislation. Absent the question of whether the Coroner can request information which is unnecessary and/or irrelevant (which is discussed below), I am satisfied that the procedure adopted by the Coroner was lawful and correct.
(c)Should the Officers have been served/issued with the s 120 Notice, and did they have standing to object it?
[60] I am satisfied that the answer to both of these questions is yes. The issues are inter-connected because if the Officers had standing then they should have been served. I shall thus deal with the question of standing first.
[61] If interpreted narrowly, s 121 does suggest that only the “person” on whom the s 120 Notice is served has standing to object to it. However, I agree with Mr Butler, that it would be a perverse and unfair outcome if the Officers did not have a right to be heard on matters directly affecting them. The s 120 Notice seeks information which relates to the Officers, is personal to them and has the potential to affect their rights. “Person” for the purposes of ss 120 and 121 of the Act must be given a purposive, fair and workable meaning. Plainly, “person” must be read in the light of NZBORA. Section 27 of NZBORA preserves the observance of the principles of natural justice by any tribunal which has the power to make a determination in respect of that person’s “rights, obligations or interests protected or recognised by law”. That right necessarily includes the right to be heard in such circumstances9 and to be given a reasonable opportunity to present their case, and reasonable notice of the case which they are required to meet.
[62] Further, and as Mr Butler points out, despite the Police being the “person” on whom the s 120 Notice was served, the interests of the Police and the interests of its individual members are divisible and not necessarily compatible. For that reason, as in the present case, it is commonplace for them to be separately represented. Additionally, the Police, as an organisation, can only give evidence through its officers.
9 Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220.
[63] For these reasons, I am satisfied that the Officers do have standing and should have been served with the s 120 Notice.
[64] Having so found, I accept that to some extent this discussion may have been overtaken by events. None of the other interested parties have sought to be heard on the question of the Officers’ standing and the Coroner did not make his findings in relation to standing, the primary, or sole basis for dismissing the Officers’ opposition. Indeed, the Officers were separately represented and were heard by the Coroner on their opposition. However, because this is the first decision of the High Court on the review processes under the Act it seems appropriate to include this discussion.
(d)Did the Officers’ refusal to comply with the s 120 Notice meet the requirements for such refusal under s 121?
[65] As noted, s 121(2) sets out the specific grounds on which a refusal to comply with a s 120 notice may be justified. Nothing in s 121 suggests that the legislature intended these grounds to be extended. More particularly, there is no express provision to make an objection on the grounds of relevance or ;necessity. Construed strictly, the section leaves no room for a party’s refusal to be grounded on any basis other than those set out in s 121(2). This narrow approach is consistent with the observations of McKenzie J in Walker v The Coroner’s Court at Wellington when he observed that:10
“If the photographs had been required under a s 120 notice, the only grounds for refusing to comply with that notice will be those in s 121(2).”
[66] The focus of the Officers’ submissions before the Coroner was that the requested information was protected by privilege because the information arose in the course of an employment relationship governed by the Employment Relations Act 2000. However, as noted and rightly in my view, this ground was rejected by the Coroner and has not been advanced in this Court.
[67] As discussed and as I understood her argument, Ms Hughes essentially submits that the question of relevance in terms of s 7 of the Evidence Act operates as a ground for refusal in terms of s 121(2)(b), that is that the production of the documents is prevented by an enactment or rule of law which prohibits or restricts making available
10 Walker v The Coroner’s Court at Wellington [2014] NZHC 2645, [2014] NZAR 1421 at [20].
the documents. As noted, the difficulty with that submission is that the Evidence Act does not extend to coronial inquiries.11 Furthermore, the formal rules of evidence do not apply to inquests.
[68] The short answer to this question is therefore no; the Officers’ refusal did not meet the requirements of s 121. But that is not the end of the enquiry.
(e)Is relevance/necessity a valid ground of objection under s 121?
[69] I have found that none of the Officers’ objections before the Coroner met the requirements of s 121(2) but, nonetheless, may a refusal under s 121 be justified on the grounds of relevance/necessity?
[70] The Coroner, in his decision, found that neither relevance nor necessity were grounds for objection under s 121. A literal reading of the section suggests the Coroner was correct. The legislation provides just three grounds for objection and does not contain a “catch-all” ground often seen in legislative provisions where Parliament actively intends to provide for a broader discretion as to the grounds for objection or appeal.12
[71] I agree with Mr Butler that it is doubtful Parliament intended the grounds for refusal to be narrowly construed. The wording of s 121(2) itself is broad and non- exhaustive. It may well have permitted the Officers to have argued that their refusal to comply with the s 120 Notice was justified. Section 21 of NZBORA could prohibit or restrict production of the requested information under ss 121(2)(b) or 121(2)(c), on maintenance of the law grounds – that the Officers’ rights to a fair hearing were impinged because the request related only to “records concerning … adverse findings in relation to their use of force”. I make no comment on the strength or otherwise of such claims. It is not necessary for me to do so. However, whether Parliament intended it or not, the legislation is restrictive with regard to the grounds of objection under s 121(2). It would be a stretch in my opinion, to find necessity as a permitted ground of objection where three discrete grounds are provided for, and where Parliament has
11 Evidence Act 2006, ss 4 and 5.
12 Fardell v Coroner’s Court at North Shore [2007] NZAR 122 (HC).
not provided for an “other” category where additional grounds might be considered. This is reflective of the prima facie assumption that the Coroner’s assessment of necessity of the requested documents is completed prior to the issuing of a s 120 notice.
[72] The next question then is whether, regardless of necessity being excluded as a ground for objection under s 121, the Court under s 126 can consider it in its review.
(f)If relevance/necessity is not a valid ground of objection, can this Court still consider it pursuant to its s 126 powers of review?
[73] In considering this question, it is necessary to first examine the powers of this Court when conducting a review under s 126. Undoubtedly, they are broad. The provision provides:
“126 Review of dismissal of claim that section 121(2) applies
(1)A person may, within 5 working days of the dismissal, apply to a High Court Judge for a review of the dismissal if—
(a)the person made a claim of the kind specified in section 121(1)(a) or section 125(a) or section 127(4); and
(b)the claim was dismissed by a coroner or a District Court Judge, as provided in section 121(1)(b) or section 125(b) or section 127(4)(a)(i) or (ii).
(2)The claim must, for the purposes of sections 121 and 125 and 127, be treated as not having been dismissed by the coroner or District Court Judge for the 5 working days referred to in subsection (1) of this section.
(3)The High Court Judge may (as the case requires), in the Judge’s absolute discretion and on any ground the Judge thinks fit, confirm, modify, or revoke the dismissal.”
[74] Section 126 has not been the subject of scrutiny by this Court previously. However, some limited interpretive assistance is provided by decisions which have considered a comparably worded provision in the Act.
[75] In Gravatt v Coroner’s Court at Auckland, Whata J examined the High Court’s powers of review under s 75 of the Act which deals with a party’s right to challenge a
Coroner’s decision to make public evidence, submissions or names.13 This Court’s power to review under that provision is worded in materially identical terms to s 126(3). The applicant in Gravatt had commenced the proceedings by way of judicial review rather than under s 75. Whata J determined that the reference to “review” in the Act invoked the same principles as are applicable to judicial review, namely whether there was an error of law, whether irrelevant considerations had been taken into account, whether relevant considerations had not been taken into account, procedural fairness and unreasonableness. However, it appears the Judge did not hear full argument on the point.
[76] The nature of a review under s 75 of the Act was also considered by Davison J in B v Coroner’s Court at Auckland when he was asked to consider whether a review under s 75 was analogous to a judicial review or appeal.14 The issue in that case was that while a review under the Act was available to challenge a Coroner’s refusal to suppress publication, the Act was silent on the appropriate procedural pathway where a challenge was made to a Coroner’s decision to suppress. While appearing to incline to the view that such reviews ought to proceed as general appeals, Davison J observed that reviews under s 75 tend to be treated as if they were brought by way of judicial review, the only difference between the respective procedural pathways being the remedies available.15
[77] I note that s 121(1)(b) provides that compliance with a s 120 notice can be refused where a Coroner’s decision to dismiss an objection to a s 120 notice is the subject of an application for review “whether under s 126 or otherwise”. The inclusion of the terms “or otherwise” suggests a Coroner’s decision to dismiss an objection to a s 120 notice is subjectable to judicial review.16 If this case were subject to judicial review, I find it to be highly likely that relevance and necessity would have been considered during the review. I come to that conclusion because judicial review would involve reviewing the Coroner’s process in reaching a decision. In
13 Gravatt v Coroner’s Court at Auckland [2013] NZHC 390, [2013] NZAR 345.
14 B v Coroner’s Court at Auckland [2020] NZHC 2278.
15 B v Coroner’s Court at Auckland [2020] NZHC 2278 at [50], referring to Matenga v Coroner’s Court at Dunedin [2014] NZHC 2994, [2015] NZAR 289 and Fardell v Coroner’s Court at North Shore [2007] NZAR 122 (HC).
16 This is so even with regard to a preliminary application; Re Hendrie HC Christchurch CP445/87, 12 January 1988.
Fardell v Coroner’s Court at North Shore, the Court considered Ms Fardell’s challenge to the Coroner’s discretionary decision not to suppress evidence as to her husband, the deceased’s personal life. Ms Fardell applied in the Coroner’s Court for suppression orders, but the Coroner declined to issue them on grounds of freedom of speech and the public interest in open trials. It was this decision Ms Fardell brought for judicial review. The Coroner’s decision is discretionary in nature, and in order to succeed in the judicial review application, Ms Fardell had to establish an error of law, or show that the Coroner had “taken into account irrelevant considerations, failed to take account of relevant considerations or reached an unreasonable decision”.17
[78] Part of the process undertaken by the Coroner would have inevitably involved considering whether the s 120 information sought was necessary to his inquisition.
[79] It is illogical for Parliament to provide an alternative to a s 126 review, by including “or otherwise” in s 121(1)(b), that had wider scope than s 126. As a result then, s 126 must contemplate a review with parameters that reflect at a minimum those in judicial review. I say here “at a minimum”, because on a plain reading of s 126(3) the powers of this Court are far greater and wider than those available by way of judicial review. Under the Act, this Court is reserved “absolute discretion” to modify or revoke the Coroner’s decision “on any ground” the Court thinks fit. In contrast, under orthodox judicial review principles, it is only the decision-making process which can be examined. And even if successful, the remedies by way of judicial review are more limited than those available under the Act.
[80] Perhaps more similar to the scope of s 126, a general appeal permits the appellate Judge to make his or her own assessment of the merits of the case.18 In a criminal context, ss 221 and 226 of the Criminal Procedure Act 2011 provides that a first or second appeal Court must determine an appeal by confirming, varying or setting aside the appealed decision and “making any orders it considers appropriate”. In a civil context, the Rules provide that after hearing an appeal, a Court can “make a decision it thinks should have been made” and “make any order the Court thinks
17 Fardell v Coroner’s Court at North Shore [2007] NZAR 122 (HC) at [31].
18 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
just”.19 But even though the wording is somewhat similar to s 126, the powers available to the Judge are limited by the more specific statutory provisions under which the appeal is brought.20 The same limits do not appear to exist with a s 126 review.
[81] However, such a conclusion does not mean the Court’s powers under s 126 are completely without fetter. The Court is still required to approach its task under s 126 judicially and reasons must be given. Natural justice demands so.
[82] This interpretation of s 126 is consistent with the general scheme of the Act which empowers a Coroner to issue a notice to produce documents and to deal with any refusals within the limited classes of exemption available under s 121(2). If a party wishes to challenge the Coroner’s ruling, the appropriate supervisory jurisdiction must lie with this Court. The same must apply where a party seeks to challenge a Coroner’s decision to require the production of a document/s or information on the grounds that the material sought is neither necessary nor relevant.
[83] There is also a practical consideration which favours such an interpretation. The review process under the Act is designed to provide an economical and speedy procedural mechanism to challenge a Coroner’s refusal to uphold an objection. The time limits for filing a review reflect that. The alternative procedural route would be by way of judicial review, a process which is a good deal more complicated procedurally and normally requires the filing of evidence, would not be compatible with such a design.
[84] And yet, an interested party judicially reviewing a s 120 notice would still rely on s 23 of the Act which requires the Coroner to take all reasonable steps to give interested parties notice of significant matters relating to the carrying out of duties and processes required by law, and s 121 in challenging the request as unlawful. Section 9 of the Act relevantly defines an interested party as:
“a person whose conduct is, in the view of the responsible coroner, likely to be called into question during the course of any inquiry in relation to the death or suspected death; …”
19 High Court Rules 2016, rr 20.19(1)(a) and (c).
20 Rule 20.1(3).
[85] The meaning of “likely’ is to be equated with “could well happen”.21 It does not need to be more likely than not. Each has been directed to give viva voce evidence and it is apparent from the observations of the Coroner in various Minutes and other communications, that the Coroner considers their conduct may well be called into question. It is uncontentious that the Officers fall within the definition of “interested party”.
[86] Relatedly, a broad construction of “person” avoids two different procedural pathways for challenge; one for “persons” under ss 121 and 126 and another for anyone else affected by the s 120 Notice. If “person” was to be construed narrowly, the Officers’ rights would be limited to judicial review, whereas the Police, as an organisation, would have access to the relatively inexpensive and speedy review process under s 126. Such a consequence could not have been Parliament’s intention.
[87] Absent a power to appeal, the remedy for parties contesting a Coroner’s dismissal of a refusal to comply with a s 120 notice is either by way of judicial review under the Judicial Review Procedure Act, or by way of review under s 126 of the Act. I consider it unlikely that Parliament intended for an objection based on necessity to be able to be heard only through judicial review, considering the purposes of the Act and its intent for speedy resolution. For the reasons already discussed, I am satisfied s 126 provides a legitimate procedural pathway.
(g) If it is determined that this Court can conduct a review, what is the test for “necessary” information requested under s 120?
[88] The test for necessity in the context of a Coroner issuing s 120 notice must reflect the procedural distinctions between the purposes and parameters of a Coroner’s inquest and the associated hearing, and civil or criminal trials. Namely, the purposes of the inquest, and the evidentiary rules that apply to it.
[89] A Coroner’s inquest is an inquisitorial process. The Coroner’s role is to attempt to establish facts relevant to the purposes of an inquest. Its nature is wholly different from a trial. While the Coroner possesses compulsive powers such as requiring the
21 See R v Gush [1980] 2 NZLR 92 (CA).
production of documents or information and compelling witnesses to appear and be examined, the essential nature and purpose of an inquest is quite unlike a trial. Liability is not in issue. There is no party contest in that sense.
[90]The three umbrella purposes of an inquest are set out under s 57 of the Act:
(a)to establish the identity of the deceased, and the time, location, cause and circumstances of their death;
(b)to make recommendations or comments in accordance with s 57A;22 and
(c)to determine whether public interest would be served by the death being investigated by other investigatory authorities in the ambit of their powers and duties.
[91]The test for necessity must be applied within the context of such purposes.
[92] The second key procedural distinction is that the formal, statutory rules of evidence do not apply in an inquest. Section 79 of the Act governs the admission of evidence before a Coroner. While s 79 is an “any evidence” rule, that latitude is circumscribed by the requirement that admission must be necessary or desirable for the purposes stated in s 57.
[93]Section 79 relevantly provides:
“79 Admission and verification of evidence
(1)A coroner may, for the purposes of an inquiry, admit any evidence the coroner thinks fit, whether or not it would be admissible in a court of law.
(2)Despite subsection (1), a coroner must not admit any evidence for the purposes of an inquiry unless satisfied that its admission is necessary or desirable for the purposes stated in section 57 (purposes of inquiries).
…”
22 For the purpose of reducing the chances of further deaths occurring in circumstances similar to those in which the death occurred as per s 57A.
[94] It is significant in my view that considerations of necessity are also to be found in s 120. Before a Coroner may issue a s 120 notice he or she must therefore consider the documents or information “necessary” for the purposes of their inquiry, which includes not only the cause of death, but also the circumstances of the death and the issue of whether the Coroner should make recommendations.
[95] Although the meaning of “necessary” for the purposes of the Act has not been considered by this Court, the word has attracted some discussion in other contexts. For example, Collins J equated “necessary” with “essential” when discussing its meaning in s 9(2) of the Official Information Act 1992.23 Davison J agreed that “…necessity connotes essentiality” when considering whether an investigator’s requisition to supply information under s 147 of the Lawyers and Conveyancers Act 2006 was reasonably necessary.24 While I broadly agree with these interpretations, context again must inform the meaning of the word when used in the Act. I agree with Mr Butler that while Coroners are performing an inquisitorial function, they are also performing a judicial role presiding over a Court of record. Some deference is thus due to the manner in which they choose to exercise that function. This point was made by Davison J in J v Legal Complaints Review Officer when he observed:
“[60] As noted above, I agree that necessity connotes essentiality. However, the context in which it is determined whether withholding disclosure is essential to avoid a proscribed consequence, such as causing prejudice to ongoing negotiations, is quite different to determining whether directing a practitioner to disclose items of information to an investigator is essential for advancing the purposes of an investigation.
[61] When a public authority determines that it is necessary to refuse to provide certain documents to an individual to avoid a proscribed consequence, the decision maker has the relevant and actual information available for their consideration, and is thereby in a position to determine whether the standard is met by reference to that information.
[62] However, when a Standards Committee or investigator directs an individual to provide documents on the basis that they are considered reasonably necessary for the purposes of an investigation, the Standards Committee does not necessarily know what information is contained within those documents. All a Standards Committee or investigator can do is consider the scope and purpose of its investigation and make a decision informed by such information as they possess at the time, as to what documents or categories of documents are reasonably necessary for it to undertake an
23 Kelsey v Minister of Trade [2015] NZHC 2497, [2016] 2 NZLR 218 at [141].
24 J v Legal Complaints Review Officer [2019] NZHC 2089.
investigation into the matters or issues which are the subject of their investigation.
[63] The documents that are provided may or may not prove to be of any relevance or assistance to the investigation. However, until the investigator has possession of or access to the requested material they can do no more than consider whether or not the information to be requested is reasonably necessary for the purposes of their investigation. The perceived relevance of the kinds of information requested will therefore be of the utmost importance in determining whether directing a “source of information” to make available their provision is reasonably necessary for the purposes of the investigation.”
[96] Naturally, considerations of relevance will inform the Coroner’s view as to necessity, but until he or she has the requested documents in their possession, a proper appreciation of relevance may well not be possible. For that reason, relevance will not always be the sole determinant of necessity. However, there must be a rational connection between the documents requested and likely issues engaged in the inquest.
[97] With those principles in mind I next turn to consider whether, in the present case, the information sought was necessary for the purposes of s 120.
(h)Was the information sought in the s 120 Notice necessary?
[98] The Coroner found that neither relevance nor necessity were available grounds of opposition, and so did not provide reasons as to how the requested information was “necessary” for the purposes of s 120. For that reason, the decision is silent as to why the Coroner considered the information sought “necessary for the purposes of [the inquest]”.25
[99] The Coroner also did not explain why necessity required the provision of only “adverse findings”. That is regrettable. In the absence of reasons, this Court must embark on its own enquiry into the necessity and/or relevance paradigm. It is to that question I now turn.
[100] The starting point is to acknowledge that the Coroner’s request was made during the preliminary procedural stages of his inquiry. The context in which the s 120 Notice was issued is important.
25 Coroners Act 2006, s 120(1).
[101] On 29 October 2019, more than three years after Mr Taylor’s death, the Coroner issued his pre-inquest Minute in advance of a pre-inquest conference scheduled for 31 January 2020. He set out the issues he wished to explore. These relevantly included the cause of death, the circumstances of the death, the history of Mr Taylor’s and Ms A’s involvement with the Police and their neighbours, the information available to the attending Police officers, the decision to arm, the Police’s strategy and planning, the decision to fire (including the nature and extent of the threat Mr Taylor posed and the availability of alternative actions), and the Police’s post- shooting actions. Other issues identified by the Coroner included whether any suppression orders should be made and whether the Coroner should make any comments or recommendations which, if drawn to the public’s attention, might reduce the occurrence of other deaths in similar circumstances. He also signalled which witnesses he intended to receive evidence from. These totalled 24 and included Ms A, her children and Officers C, D and E. Two weeks later, on 13 November 2019, he issued the s 120 Notice.
[102] The issues identified by the Coroner reflect the Act’s definition of the Coroner’s role in s 4 of the Act and, in particular, s 4(2) which lists the three purposes of an inquest. These purposes are replicated in ss 57 and 57A of the Act.
[103] In the absence of reasons given by the Coroner, it is necessary for this Court to consider, afresh, the question of whether the information at issue, namely any records held by the Police of adverse findings relating to the Officers’ use of force or tactical decision making, is necessary for the purposes of the Coroner’s inquiry.
[104] In that context, it is necessary to examine the role each of the Officers played in the events leading up to the fatal shooting of Mr Taylor. It appears to be common ground that Officer C, in the second Police car, played little or no part in the events, although he witnessed what happened. Officer E occupied the driver’s seat in the first car. He was seated next to Officer D. Although he considered leaving the vehicle for the purpose of deploying his taser, the speed at which the events unfolded, and the apparent immediacy of the threat which Mr Taylor posed, led him to remain in the car. Only Officer D used force.
[105] When the Police car containing Officers D and E arrived, Ms A and her 14 year-old daughter were in a utility at the bottom of the driveway. When interviewed by the Police and the IPCA, they said they saw Mr Taylor run at the Police car and throw the slasher blade over the top of the car. Ms A told the IPCA that she believed Mr Taylor had thrown it at a Police sniper in the bush behind the Police car. They said they saw Mr Taylor standing by the back passenger door of the Police car when he dropped the machete and saw what would have been the window glass shattering when Officer D fired through it at Mr Taylor. They then say they saw Mr Taylor walk towards the front of the Police car with his hands in the air. They said they saw the Officers get out and then shoot Mr Taylor as he walked away from them although, at the time, they believed that Mr Taylor was first tasered. Neither heard any gunshots or anything said by Mr Taylor or the Officers.
[106] Ms A’s 21-year-old son was in his room and did not see the initial confrontation but heard four to eight shots being fired and heard the Officers shouting “get down!” and “put your hands behind your back!”. All three witnesses then met at the caravan and discussed what they had seen and heard.
[107] Material aspects of their accounts not only contradict the accounts of the Officers but run contrary to the forensic evidence which independently supports the Officers’ accounts. There is no evidence, other than Ms A’s claim, that a Police sniper was responsible for Mr Taylor’s death. Secondly, the forensic pathology supports the Officers’ accounts that Mr Taylor was shot as he faced Officer D, not as he walked away, as Ms A and her daughter claim.
[108] On the material presently available, there is simply no alternative, credible narrative to the Officers’ accounts which were assessed and considered both by the Police in undertaking the homicide enquiry and the IPCA’s independent investigation.
[109] The role of the Coroner is a very different one from that undertaken by the Police or the IPCA. Plainly, as he expressly noted, the Coroner is not bound by the factual findings and liability assessments reached by other organisations.
[110] In the present case, the Coroner set out in his Minute of 29 October 2019 his view of the issues which broadly reflected the purposes of a coronial inquiry in terms of ss 4(2), 57 and 57A of the Act.
[111] Whether, in fact, there exist any employment records containing adverse findings relating to the Officers’ use of force or tactical decision making is properly not known and is, in any event, irrelevant for the purposes of this Court’s assessment. The issue is whether any such material, if it exists, is necessary for the purposes of the inquest.
[112] I am easily satisfied that in relation to Officer C’s involvement the necessity test is not made out. He took no active part in the events leading to Mr Taylor’s death. He used no force. He made no tactical decisions. It is difficult, if not impossible, to see how such information, if it exists, would meet the necessity test.
[113] Likewise, with Officer E, there was no use of force. Nor is it possible to see how previous adverse findings as to tactical decision making or use of force relative to him might be necessary for the purposes of the inquest. Officer E contemplated leaving the car to deploy his taser but elected not to do so given the immediacy of the threat. He exhorted Officer D to shoot Mr Taylor, but given the absence of an alternative credible narrative, that is unsurprising in the circumstances.
[114] Finally, I turn to consider the position of Officer D. Similar comments apply despite the fact Officer D did use force. There is no credible, alternative narrative to his account of the events on the material which was before the Coroner and, on review, before me. For that reason, I am likewise, not satisfied that the test of necessity is made out.
[115] As Mr Jones rightly accepted, there may well be situations where such a requisition will meet the necessity test. This is most likely to arise where there are competing factual narratives which require credibility findings to reconcile them. Such a case confronted the Queensland Supreme Court in Doomadgee v Deputy State Coroner Clements.26 The statutory scheme is broadly analogous. Mr Doomadgee, an
26 Doomadgee v Deputy State Coroner Clements [2005] QSC 357, [2006] 2 Qd R 352.
aboriginal, died in Police custody from severe blunt force trauma. The pathology was ambiguous as to the mechanism of his death which could have been accidental or as a result of violence. One of the parties applied to the Coroner to adduce evidence that the officer dealing with Mr Doomadgee had previously assaulted prisoners in his custody. The Coroner declined the application. That decision was reviewed in the Queensland Supreme Court. Muir J held:27
“… The evidence relied on by the Coroner must be relevant to the matters within the scope of the coronial inquiry. The Coroner may act ‘on any material which is logically probative’; that is, ‘the decision must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant’.”
(footnotes omitted)
[116] It was held that the evidence was relevant and should be admitted at the inquest to establish that the officer in question had a propensity to violently mistreat aboriginal prisoners. Muir J concluded that the propensity evidence was relevant and logically probative of a fact to be determined, namely whether the death was accidental or caused by “the deliberate application of force” in the context of equivocal evidence as to the mechanism.
[117] With respect, I entirely agree with the reasoning and result in Doomadgee given the particular circumstances which confronted the Court in that case. But that is not the situation here. The cause of death in the present case is uncontentious. Mr Taylor died from wounds caused by one of four bullets fired by Officer D. The evidence of the Officers is not only internally consistent but is consistent inter se. It is also consistent with the forensic evidence. Evidence of a propensity by any of the three Officers to act in a particular way is not necessary or essential in terms of any of the statutory purposes or issues identified by the Coroner on the present state of the evidence. Furthermore, it is not logically probative to the existence (or absence) of any facts relevant to the issue or issues to be determined. There is some force in Mr Jones’ submission that to make such an order before all issues are clear was premature and speculative.
27 Doomadgee v Deputy State Coroner Clements, above n 26.
[118] For those reasons, I am satisfied that the Coroner’s blanket direction relative to all three Officers, despite their very different roles in these tragic events, suggests a failure to consider their individual circumstances in the context of the particular information requested. The requisition was not necessary for the purposes of the inquiry and should be revoked.
[119] There is, however, one reservation to this order. As already noted, unlike the investigations undertaken by the Police and the IPCA, the Coroner’s inquiry is broad and will necessarily involve the calling of witnesses to give oral evidence. They will be subject to cross-examination. It is likely that parties represented at the inquest will put alternative factual scenarios to the Officers and others. Although on the material before me it would seem unlikely, it is possibly conceivable that as a consequence of that process, evidence may emerge which puts in issue one or more of the Officers’ use of force or tactical decision making. As a consequence, it is possible that findings of credibility may be required to be made by the Coroner. A propensity to make poor tactical decisions or use excessive force might be relevant to such an assessment. Such evidence may become relevant to the issue of the circumstances of Mr Taylor’s death and might cause the Coroner to consider whether he should make any comments or recommendations which might, if drawn to public attention, reduce the chances of the occurrence of other deaths in similar circumstances.28
[120] For that reason, my revocation order is not to prohibit the Coroner from requiring the production of any findings relative to the Officers’ use of force or tactical decision making if that becomes a live issue of relevance at the inquest. Section 120 does not limit the issue of a s 120 notice to the pre-inquest phase or any other phase. It would be open to the Coroner to make such a requisition in the course of the inquest hearing if satisfied it was necessary. I note, however, that in the event the Coroner considers it necessary, any such requisition should not be limited to adverse findings. Evidence of a propensity to use minimal or reasonable force and to make sound tactical decisions must also be relevant to any such assessment.
28 Coroners Act 2006, ss 4(2)(b) and 57A.
Result
[121] The Coroner’s power to require information via s 120 notices is subject to the requirement of necessity in relation to the purpose/s of the inquest.
[122] The s 120 Notice is revoked in relation to the requisition that the Police and/or the Officers provide any records concerning any adverse findings relating to the Officers’ use of force or tactical decision making.
[123] In the event any further s 120 notice is issued, it must be served on any affected person.
Moore J
Solicitors:
Ms Hughes QC, New Plymouth Crown Law, Wellington
Mr Butler, Auckland
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