Case notes on recent Australian coronial law

Hecht v Coroners Court of Victoria [2016] VSC 635

Samantha Kisielis died when the motorcycle she was riding collided with a car. A Victorian coroner conducted an investigation and made findings without holding an inquest. Among those findings were the following paragraphs:

[4] At approximately 7.45am, Mr Chrisanta Amungama was driving his white Toyota Hilux motor vehicle in Frost Drive, Delahey. The vehicle was positioned towards the centre of the roadway, with right turn indicators operating and he commenced to turn right into Longfellow Drive, Delahey. As the vehicle turned, Ms Kisielis’ motorbike is reported to have attempted a complete right hand turn at the same location by overtaking the vehicle on the inside.

and

[21] I am satisfied having considered all of the evidence before me that no further investigation is required. It appears that Ms Kisielis misjudged or miscalculated the space or distance available to her for the overtaking manoeuvre. Whilst the manoeuvre of itself appears to be an unusual riding action for Ms Kisielis, there is no evidence that the collision was intentional.

Mr and Mrs Hecht (the Hechts) were Ms Kisielis’ parents-in-law. It was accepted for the purposes of the judgment that they acted in the place of the senior next-of-kin and therefore had standing to bring the appeal. The coroner had not offered the Hechts (or any other family member) a chance to make submissions, nor was any warning given to them that the finding would be phrased in the terms it was.

The Hechts disagreed with the tenor of the finding that Ms Kisielis had been at fault for the accident that caused her death. They wanted paragraphs 4 and 21 removed from the finding. The coroner refused to reopen the investigation. They appealed to the Supreme Court for an order that the coroner re-open the investigation (s 87A).

The Supreme Court allowed the appeal on the basis that procedural fairness and the duty to inform of adverse comment had not been complied with. Justice Forrest stated:

[51] … I consider that there was a denial of procedural fairness at the initial stage in that the Coroner reached her findings without alerting (at a minimum) Mr Kisielis, as the senior next of kin, to the fact that there was a potential for an adverse finding and inviting submissions prior to delivering her ruling.

As the Victorian legislation contains no specific adverse comment provisions, Australian courts have read in to the duty of procedural fairness the need to give an opportunity to comment on adverse findings (see generally Annetts v McCann (1990) 170 CLR 596 cited in Hecht v Coroners Court of Victoria [2016] VSC 635 at [57]-[58]). The New Zealand legislation provides a statutory basis for the adverse comment procedure, however the duty is broadly the same as in Victoria.

The interesting point about the decision is the finding that paragraphs [4] and [21] constituted adverse comment. This was accepted without analysis by the court. The decision may therefore be of some concern given the fairly tamely worded findings. Coronial practice may vary, but a finding that includes the quoted passages above may not, as a matter of general practice, often attract the adverse comment procedure in New Zealand.

In New Zealand “a comment will be adverse where it will reflect ‘unfavourably’ on a person” (Carroll v Coroner’s Court at Auckland [2013] NZHC 906, [2013] NZAR 650 at [45]). In order to be adverse, any comment that links a person’s conduct with a death “must reflect negatively on that conduct” (Carroll at [45]).

The coroner wrote in terms of Ms Kisielis as having “misjudged or miscalculated”. It was also implicit in the finding that the car’s indicator light was on and working. Whether this reflects “unfavourably” on a deceased person in terms of the New Zealand jurisprudence is open to debate and further analysis. On one account, speaking of a misjudgement is almost necessary if the coroner wishes to make the point that there was no reason to explain why it happened and it was also not a suicide. The alternatives would be to say what happened while expressing no conclusion as to why things happened (which may undermine a duty to determine the circumstances of a death) or to avoid findings that might fairly be required to absolve innocent parties (such as the driver of the car). Neither of these seem desirable. And while the adverse comment procedure is not onerous, overly cautionary use of the section will add delay to cases, or give the parties opportunities to take issue with other, non-adverse aspects of findings.

The decision may provoke reflection in terms of how cautionary an approach should be taken to what is adverse comment in New Zealand.

 

Chol v White [2016] VSC 561

Erjok Nai died when he fell from the 12th floor of an office building in central Melbourne. Investigations revealed a sad and somewhat bizarre sequence of events leading to his death. Mr Nai spent a night drinking and nightclubbing in central Melbourne with friends. When he bade farewell to them he was described as moody and sad. He stayed out late, and at around 8.00am the following morning was wandering the streets of central Melbourne as people were heading to work. Mr Nai accosted several, grabbed some, tried to dance with others. He asked if they could see him.

Mr Nai followed one up in an elevator to the 12th floor offices of a law firm. He confronted the receptionists and other staff present. He threw a cup of tea at one of them and told them he had nothing to live for. Mr Nai ran towards a window, jumped at it, smashed through it and fell to his death. His death was referred to the coroner.

A thorough investigation was carried out. The coroner had Mr Nai’s background and medical history, a post-mortem report that confirmed the cause of death as trauma from the fall, witness statements from those who had encountered Mr Nai including statements from nine people who witnessed the events on the 12th floor. There was also CCTV footage from the 12th floor that showed the early parts of the confrontation but not Mr Nai leaping through the window.

The coroner decided not to hold an inquest. The coroner had the power to decide whether to hold an inquest under s 52(1) of the Coroners Act 2008 (Vic). That section provides that “A coroner may hold an inquest into any death that the coroner is investigating.” This is a broad, discretionary power. Like any discretionary power it is to be exercised consistently with the purposes and principles of the legislation in which it is found. Section 80 of the Coroners Act 2006 (NZ) confers a similar discretion, however it places further limits on the discretion by providing two mandatory considerations ins 80(2). This does not significantly undermine what is still a wide discretion conferred on a New Zealand coroner.

The Victorian Act has four further differences to the current New Zealand scheme:

  • First, a Victorian coroner is required to hold inquests in certain circumstances (for example, if the death was in custody or care, or the coroner “suspects the death was the result of homicide”).
  • Second, the Victorian Act sets out specific circumstances where a coroner is not required to hold an inquest (that trump the cases where an inquest is mandatory). For example, if the death is more than 50 years old, or a person has been charged with an indictable offence in respect of the death, then a coroner can decline to hold an inquest.
  • Third, the Victorian Act allows a person to request a coroner to hold an inquest (s 52(5)). The coroner is not obliged to comply with the request. This differs from the wording of s 77 of the Coroners Act 2006 (NZ) where, if a coroner indicates his or her intention to hold a hearing on the papers, a person may give notice of an intention to give evidence in person or cross-examine any witness (s 77(1)). If a person indicates such an intention a coroner must hold an inquest (s 77(3)).
  • Fourth, the Victorian Act allows a person to appeal a coroner’s decision to refuse to hold an inquest (ss 87-87A). The appeal is heard by the Supreme Court of Victoria.

The differences and similarities may be summed up in the following way. In both New Zealand and Victoria (barring any special cases like a Victorian death in custody or care where an inquest is mandated) the decision whether to hold an inquest is a discretionary decision. In Victoria, a person has no power to insist on an inquest, but they may appeal a coroner’s refusal. In New Zealand, s 77(3) allows a person to insist on an inquest. If a New Zealand coroner decides not to hold an inquest, the way to challenge that decision would be by judicial review.

Mr Nai’s mother, Ms Chol, requested that the coroner hold an inquest. The coroner decided not to hold an inquest into Mr Nai’s death. The hearing would be conducted on the papers. The reasons the coroner gave were that:

  • The cause of death had been established from the medical evidence and eyewitness accounts.
  • There was no evidence to suggest this was homicide (such that an inquest would be required by the Act). Based on the eyewitness accounts and the surrounding circumstances, the coroner was satisfied homicide could be ruled out.
  • There was no question as to identity.
  • There were unlikely to be recommendations made that touched upon health and safety issues.

Ms Chol, appealed to the Supreme Court. The essence of the family’s concerns appears to have been that the death may have been the result of foul play and that the death was not fully investigated. The family sought to have an inquest to enable them to hear the viva voce evidence from the witnesses. This would help them to understand what happened in the minutes preceding Mr Nai’s death.

The Supreme Court dismissed the appeal. In essence, none of the grounds advanced by the family had substance, and the Supreme Court was satisfied the coroner had correctly decided not to hold an inquest. The witness statements were consistent, and supported in part by the CCTV footage. The coroner was correct to find there was nothing to suggest homicide. An inquest would add little to what the coroner had to determine.

The best encapsulation of the Supreme Court’s reasoning is at [55]:

It is peculiarly within the coroner’s knowledge as to how to utilise the resources of the Coroner’s Court in determining whether to hold an inquest; he or she is aware of the demands on the Court for mandatory inquests and in relation to other deaths that may necessitate the holding of an inquest. If the coroner is, after perusing all the material, satisfied that an inquest will serve no useful purpose then that is his or her call.

Justice Forrest also noted that family interests are important but “[w]hilst I sympathise with the family’s desire to have the [law firm] witnesses give viva voce evidence, the coroner is, in this case as in any other, obliged to consider, in the light of their already sworn statements, whether any purpose would be achieved by requiring viva voce evidence” (at [47]). This argument by the family may produce a different result in New Zealand. Assuming that the family request was in fact an intention to cross-examine the law firm witnesses, then a coroner is required to hold an inquest (s 77(3)).

However the underlying points about the purpose of inquests are useful nevertheless. Coroners can and do negotiate with families about inquests within the shadow of s 77(3). A family’s initial desire for an inquest can sometimes be mitigated by providing them further information, or by explaining the reasons why the coroner does not think an inquest is warranted.

The decision also confirms that the initial decision about an inquest is in a coroner’s discretion. That, at least, is relevant to New Zealand practice.

The factors the Victorian Supreme Court identified as relevant (in this case at least) to the decision about whether to hold an inquest were:

  • The purposes and objectives of the Coroners Act (at [41]).
  • The consistency of the evidence on the file (that may otherwise need to be explored in cross-examination) (at [43]).
  • The extent of corroboration provided by objective evidence (for example, CCTV footage, cellphone records) (at [45]).
  • Are any gaps in the evidence likely to be filled by evidence given at inquest (at 46]).
  • Is there any reason to suspect that witness accounts might be false? (at [53])
  • The bearing of resourcing issues (at [55]).
  • What “useful purpose” is going to be achieved by holding an inquest (at [55])?

In the face of a wide discretion, such a list must be non-exhaustive. New Zealand coroners must also specifically consider the two mandatory considerations in s 80(2): that the death occurred in official custody or care and was not reasonably expected, and whether an inquest would enable a hitherto uninvolved person to scrutinise the evidence or offer new evidence.

Relevance to New Zealand coroners

Coroners will seldom set out written reasons for why an inquest is being held. In that regard, perhaps little written reference will be made to this decision. Nor will the listed factors come as a revelation to coroners, who will frequently weigh these factors and more when making decisions about inquests. However, the decision may at the very least assist in marshalling thoughts when deciding whether to hold an inquest, or when attempting to explain to family members who may be insisting on an inquest.

The decision may also be useful to justify why an inquest should in fact occur in the face of opposition from one or more parties, especially in highly contested situations where the parties have legal representation. The cover of case law is always a nice-to-have.

Finally, the decision is an endorsement of the current coronial practice in that coroners will consider a wide range of factors when deciding whether an inquest is necessary.

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