Whittington v Solicitor-General
[2024] NZHC 1314
•23 May 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-45
[2024] NZHC 1314
UNDER the Coroners Act 2006, the Judicial Review Procedure Act 2016, the Crimes Act 1961 and the High Court Rules 2016 IN THE MATTER OF
an application for judicial review
BETWEEN
MARK ANTHONY WHITTINGTON
Applicant
AND
THE SOLICITOR-GENERAL
Respondent
Hearing: 19 February 2024 Appearances:
Applicant in person
I M G Clarke for the Respondent
Judgment:
23 May 2024
JUDGMENT OF PALMER J
Solicitors
Crown Law Office | Te Tari Ture o te Karauna, Wellington
WHITTINGTON v SOLICITOR-GENERAL [2024] NZHC 1314 [23 May 2024]
What happened?
[1] The medical records of Ms Carol Ann Whittington indicate that she was diagnosed with bladder cancer in December 2018. On 12 February 2019, her medical records noted that she was referred to palliative care. Her health deteriorated over the winter of 2019. On 10 September 2019 she was transferred to a rest home. On 16 September 2019, she died at the Princess Alexandra Retirement Village in Napier, aged 72. The Medical Certificate of Cause of Death recorded carcinoma of bladder as the underlying cause of death, chronic kidney disease as the antecedent cause of death and myocardial infarction as the disease or condition directly leading to death. The doctor who signed the Certificate recorded that he was satisfied Ms Whittington’s death did not need to be reported to the coroner and he did not request a post-mortem.
Law of coronial inquiries
[2] Section 3 of the Coroners Act 2006 (the Act) provides that its purpose is to help prevent deaths and to promote justice, including through “investigations, and the identification of the causes and circumstances, of sudden or unexplained deaths, or deaths in special circumstances”. Under s 57 of the Act, a coroner may open and conduct an inquiry (including any related inquest) for three purposes: to establish that a person has died, when and where they died, the causes and consequences of their death, and their identity; to make recommendations or comments; and to determine whether the public interest would be served by the death being investigated by other authorities. In deciding whether to open and conduct an inquiry, s 63 of the Act requires a coroner to have regard to specified matters, including:
(a)whether the causes of death appear to have been natural;
(b)the extent to which the death was due to the actions or inactions of any other person;
(c)the existence and extent of allegations, rumours, suspicions or public concern about the death;
(d)the extent to which drawing attention to the circumstances of the death may be likely to reduce similar deaths;
(e)the desire of any members of the immediate family of the deceased that an inquiry should be conducted; and
(f)any other matter the decision-maker thinks fit.
[3] Section 95 of the Act empowers the Solicitor-General or the High Court to order an inquiry be opened into a death by a Coroner “[i]f satisfied that an inquiry is necessary or desirable and that the responsible coroner has failed or refused to open one”.
The decisions
[4] On 15 April 2020, Ms Whittington’s son, Mr Mark Whittington, asked the Solicitor-General to order a coronial inquiry into her death. He provided material to the Crown Law Office including his broad-ranging complaint to the Health and Disability Commissioner about his mother’s treatment.
[5] In a letter of 6 November 2020, the Acting Deputy Solicitor-General, Mr Peter Gunn, expressed his sincere sympathies for Mr Whittington’s loss, but declined the request. He referred to the information he had considered. He reviewed the purposes of a coronial inquiry. He noted the Act enabled the Solicitor-General to order an inquiry if satisfied there were grounds to do so. But he was not satisfied it was necessary, in the interests of justice, to order the opening of a coronial inquiry. His reasons were that the circumstances of Ms Whittington’s death were all established by the Medical Certificate of Cause of Death, the material provided supported that and did not indicate her death was suspicious, and he did not consider recommendations by the coroner would reduce the chance of further deaths in similar circumstances or that there were grounds to refer the case to another investigating authority.
[6] Mr Whittington then raised further issues about the cause of Ms Whittington’s death. He believed his mother had been misdiagnosed, she was healthy with no signs of illness, alleged thefts and court proceedings were related to her death, there was a
conspiracy regarding his mother’s death. He alleged “someone violently ended her life, there were corrupt circumstances, and someone did a vicious act of cruelty”. Crown Counsel spoke with him and gave him the opportunity to comment on notes of the conversation. On 7 December 2020, in a letter to Mr Whittington, the Deputy Solicitor-General, Ms Virginia Hardy, confirmed the decision not to order a coronial inquiry. She found he had provided no evidence which supports the existence of the conspiracy he alleged.
Submissions
[7] Mr Whittington applies for judicial review of the decision(s) to decline to order a coronial inquiry. His third amended statement of claim, of 24 August 2022, alleges that the decisions were pre-determined and that they breached the duty of investigation under s 8 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). Mr Whittington appears to submit that the decision-maker(s) did not consider all the material he provided to Crown Law and did not make due and proper inquiry into the substance of that material. He submits there is sufficient evidence to support his claim that an inquest needs to be ordered, in the public interest. Otherwise, the grounds for Mr Whittington’s challenge are difficult to identify precisely.
[8] After the hearing, Mr Whittington sought to file two further affidavits. The first affidavit, dated 22 February 2024, includes correspondence between Mr Whittington and government agencies. The Solicitor-General opposed the admission of that new evidence. The affidavit is not strictly admissible under s 98 of the Evidence Act 2006 and much of it is not relevant to the issues I have to decide. In the interests of providing assurance to Mr Whittington, I have reviewed it anyway; but the information does not advance his case. Neither does the 185-page affidavit dated 30 February 2024 which is also irrelevant and inadmissible.
[9] Ms Clarke, for the Solicitor-General, conveys the Crown’s deep sympathy for Mr Whittington. But she submits that there is no reviewable error in the decisions and, to the extent there was any duty of investigation, that duty was met.
Should the challenge succeed?
[10] The evidence before me does not support the existence of an error in the decisions. The evidence is that hardcopies of all the material provided by Mr Whittington in late July 2020, further information emailed by him, and correspondence between Crown Law and the Coronial Services Unit was before the Acting Deputy Solicitor-General. He reviewed a range of documents on Crown Law’s electronic file, including Mr Whittington’s complaint to the Health and Disability Commissioner. The letter of 6 November 2020 referred directly to the material considered. There is no evidential basis to suggest pre-determination.
[11] Section 8 of the Bill of Rights provides that “[n]o one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.” The Solicitor-General acknowledges that a procedural obligation on the State arises where s 8 of the Bill of Rights is engaged, requiring an investigation into potentially unlawful deaths for which it may be held accountable, as a necessary incident of the right to life.1 She acknowledges the State must conduct an independent, impartial, prompt, thorough, effective, credible, and transparent investigation.2 I agree that duty was discharged here, by the investigations of the doctor who signed the medical certificate and the review of the available information by the Solicitor-General’s delegates.
[12] Mr Whittington appears to believe that Ms Whittington’s death certificate incorrectly recorded the cause of death which was suspicious. I have reviewed the material before the Court. It does not support either belief. Rather, Ms Whittington’s medical notes support the conclusion recorded in the certificate that carcinoma of the bladder was the underlying cause of death. Without getting into detail about Ms Whittington’s medical conditions, I refer in particular to her medical notes of 30 November 2018, 8 December 2018, 7 February 2019, 7 August 2019, and 30 August 2019. There is no good reason to doubt them.
1 Wallace v Attorney-General [2022] NZCA 375, [2022] 3 NZLR 398 at [132].
2 At [118].
[13] Mr Whittington’s understanding that a nurse at the rest home questioned whether she had renal failure carries substantially less weight than the medical notes. His belief that she was not expected to die, that she did not suffer from any cancer, and that there was no medical evidence to support diagnoses of her having a terminal illness, or that the cancer was getting larger, is entirely at odds with her medical notes.
[14] It would be understandable for Mr Whittington to be disappointed at the lack of treatment options available for his mother and the speed of her deterioration, and to be shocked over her death. I offer Mr Whittington the sympathies of the Court in that regard. But the evidence I have reviewed does not support his suspicions of a conspiracy about the causes of her death. In essence, Mr Whittington disagrees with the decision to decline to order a coronial inquiry and the decision to confirm that decision. That is not sufficient in law to succeed in challenging a decision. These decisions were open to the decision-makers, and were reasonable, lawful, and valid.
[15] I decline the application for judicial review. The Solicitor-General does not seek costs, so I do not award costs.
Palmer J