R v Michael Somes; Ex Parte Francis Woods [1998] ACTSC 160 (3 March 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   CRISPIN J

  

  

   COURTS & JUDGES
- Coroner - disqualification of Coroner for apprehended
bias - whether natural justice excluded by Coroners Act 1956 - death in
custody
- whether prejudgment in Coronial inquiry where Coroner had heard
application by deceased for bail - test for apprehended bias.

   COURTS & JUDGES - Coroner - standing of coronial witness to object to
Coroner on ground of apprehended bias - whether rules
of natural justice apply
in relation to potentially adverse findings - difficulty in determining risk
of adverse findings against
potential witnesses at outset of inquiry - whether
nature of potentially adverse finding must be identified - whether delay or
waiver
of right to object on ground of apprehended bias - whether conduct of
objector relevant.

  

   Coroners Act 1920 (WA)

   Coroners
Act 1956 .

   Livesey v New South Wales Bar Association [1983] HCA 17;  [1983] 151 CLR 288

   Annetts v McCann [1990] 170 CLR 597

   Laws v Australian Broadcasting Tribunal [1990] HCA 31;  [1990] 170 CLR 70

   The Queen and His Honour Judge Leckie ; Ex parte Felman [1977] 52 ALJR 155
at 160

   R v Watson; Ex parte
Armstrong [1976] HCA 39;  [1976] 136 CLR 248 at 262

   Australian National Industries Limited v Spedley Securities Limited [1992]
26 NSWLR 411 at 419 and
447

   McCrory; ex parte Rivett [1895] 21 VLR 3

   Vakauta v Kelly [1989] HCA 44;  [1989] 167 CLR 568

   Kennedy v Cahill [1995] 118 FLR 60

   Trustees of Christian Brothers v Cardone [1995] FCA 1309;  [1995] 130 ALR 345 at 365

  

  

   CANBERRA, 6, 18 and 25 February 1998 (hearing), 3 March 1998 (decision)

   #DATE 03:03:1998

  

   Appearances

  

   Counsel for the Prosecution: Mr R Thomas for Francis Woods

   Solicitors for the Prosecution: Tjakamarra
Forrest Solicitors

  

   Counsel for the 1st Respondent: Mr P Walker for Michael Somes

   ACT Government Solicitor

  

   Counsel
for the 2nd Respondent: Mr C Erskine for Australian Capital
Territory

   Solicitors for 2nd Respondent: Mr Russell Bayliss, ACT
Government Solicitor

  

   Counsel for the 3rd Respondent: Ms H McGregor for ACT Community Advocate

  

   Counsel for the 4th
Respondent: Mr I Bradfield for Mrs J Watson

   Porter Pilkinton & Bradfield

  

  

  

   Order:

   1. The application be
dismissed.

  

  

  

   CRISPIN J

  

   1. This is an application for a Writ of Prohibition effectively restraining
the respondent
from continuing to hear an Inquest into the death of the late
M. An Order Nisi was made on 6 February 1998 and the prosecutor now
contends
that the Order should be made absolute. During the course of the hearing
applications were made on behalf of the Australian
Capital Territory, the ACT
Community Advocate and Mrs Judy Watson, the mother of the deceased, to be
joined as parties to the proceedings.
Those parties were duly added as the
second, third and fourth respondents respectively. The first respondent
indicated that he would
abide by any order of the Court but did not wish to be
heard.

  

   2. The deceased was a young man who had been remanded in custody
at Quamby
Youth Detention Centre ('Quamby') after surrendering himself to the
authorities following his failure to comply with bail
conditions. On 15
September 1996 he apparently attempted suicide whilst at that Centre. A bail
application was made on his behalf
next morning to enable him to be taken to
the Canberra Hospital for psychiatric assessment. That application was heard
by the first
respondent who granted the application. He was thereupon taken to
the psychiatric unit at that hospital where he was assessed, presumably
by the
medical staff, but found unsuitable for admission. It had been a condition of
his bail that he return forthwith to the Court
for further order if not so
admitted and the matter came back before the first respondent later that day.

  

   3. A further application
for bail was opposed. Evidence was given that he
had breached a number of his bail conditions, that his father had withdrawn
his
surety and was not willing to have him at home, that there was no other
place for him to live, that his mother and a person described
as "the victim
in relation to this allegation" feared for their safety and that the police
believed he would not answer bail. The
evidence before me contained no
information as to the nature of the allegation referred to or the nature of
any pending charges.
However, the first respondent was told that the deceased
"becomes very violent" and the police officer who gave evidence expressed
his
belief that "people", including the deceased himself, would be at risk if he
were to be released. In answer to these contentions
the deceased's solicitor
told the first respondent that the deceased had "handed himself into the court
last week because he decided
to try and get his life back into order". She
said that he realised that he had failed to meet the conditions of bail in the
past
but indicated that he intended not to make the same mistakes again. She
also said that he was able to live with his aunt, though
attempts at
contacting her had not been successful. Most significantly, she said that he
had expressed grave concerns about being
incarcerated in Quamby, that he
believed it caused him mental health problems and that he had been making
statements to the effect
that he would rather die than return. She added that
his psychologist was present in court in the event that the first respondent
wished to ask him any questions about the matter. The respondent refused bail,
indicating that in his view the situation was "far
too risky" at that time for
the deceased to be at large. He added that the deceased was a "detainee at
risk".

  

   4. The deceased
was then returned to Quamby. During the course of that
night he apparently made a further suicide attempt as a result of which he
sustained serious injury. He was admitted to hospital the following morning
but died on 21 September 1996. The prosecutor was the
officer in charge of
Quamby.

  

   5. The application is not based on any allegation of any actual bias on the
part of the first
respondent It was rather contended that the facts gave rise
to a case of apprehended bias. As the High Court of Australia held in
Livesey
v New South Wales Bar Association [1983] HCA 17;  [1983] 151 CLR 288 the relevant principle is
that "a judge should not sit to hear a case if in all the circumstances the
parties
or the public might entertain a reasonable apprehension that he might
not bring an impartial and unprejudiced mind to the resolution
of the question
involved in it" (per Mason, Murphy, Brennan, Deane and Dawson JJ at 293-294).
This principle is fundamental to the
concept of natural justice.

  

   6. In the present case it was submitted that any adequate inquiry into the
circumstances in which
this young man died would inevitably involve an
examination of the wisdom of the decision to refuse bail in the face of the
intimation
that he would rather die than return to Quamby. Since it was the
first respondent who had made that decision there would be an inevitable
appearance of prejudgment. As the High Court pointed out in Livesey , at 300:

  

  

   " . . . where it is not suggested that
there is any overriding
consideration of necessity, special circumstances or consent of the parties, a
fair minded observer might
entertain a reasonable apprehension of bias by
reason of prejudgment if a judge sits to hear a case at first instance after
he has,
in a previous case, expressed clear views either about a question of
fact which constitutes a live and significant issue in the subsequent
case or
about the credit of a witness whose evidence is of significance on such a
question of fact".

   7. Mr Thomas, who appeared
on behalf of the prosecutor, maintained that the
proceedings gave rise to no issue of necessity, special circumstances or
consent
and that a reasonable apprehension of bias was inevitable.

  

   8. The application was opposed on a number of grounds.

  

 
 Standing

  

   9. Mr Bradfield, who appeared on behalf of the fourth respondent, submitted
that the prosecutor lacked standing
to bring the application. He adopted
submissions previously made by counsel assisting the first respondent to the
effect that a coronial
inquiry was not a proceeding which affected the rights
and liabilities of individuals and hence there was no risk of an adverse
finding
sufficient to support an objection on the ground of apprehended bias.

  

   10. This proposition may be dealt with shortly. In
Annetts v McCann [1990] HCA 57;  [1990]
170 CLR 596 the High Court of Australia held that the rules of natural justice
apply to proceedings before a coroner unless
the statute under which the
proceedings are conducted displays a legislative intention to exclude the
rules of natural justice. In
that case the relevant statute was the Coroners
Act 1920 (WA) and the court held that it did not display such an intention. In
the
present case, it was common ground that the proceedings are governed by
the Coroners Act 1956 . Having examined the terms of that
statute I am
satisfied that nothing contained therein reveals any legislative intention to
exclude the rules of natural justice.

  

   11. I am also satisfied that the powers and duties conferred upon a coroner
by that Act are such that potentially adverse
findings may well be made
against people referred in the evidence before an inquest. As Brennan J
observed, in Annetts v McCann at
608 - a Coroner's finding as to the manner
and cause of death "plainly is apt to affect adversely the interests of any
person upon
whom the finding would reflect unfavourably, even if that person
is not committed for trial the finding is not framed in such a way
as to
appear to determine and any question of civil liability or guilt of an
offence". Consequently, it is open to any person whose
interests may be
adversely affected by the finding of a coroner to make an objection based upon
any alleged breach of the rules of
natural justice including the ground of
apprehended bias.

  

   12. Mr Bradfield also submitted that there was no evidence to suggest
that
any adverse finding was either contemplated or likely and that, whilst it
remained theoretically possible that adverse comments
might be made about any
person who had given evidence in the proceedings, mere speculation that a
person might be subject to such
comments would not be sufficient to give that
person standing to seek prerogative relief. He argued that it was necessary
for an
objector to identify the nature of the adverse finding which he or she
feared might be made and to adduce some evidence that there
was a likelihood
or at least a significant risk of such a finding. His argument was generally
supported by Mr Erskine who appeared
for the second respondent.

  

   13. This submission raises potentially difficult issues. In Annetts v
McCann the issue had been
not apprehended bias but a refusal by the coroner to
permit a final address by counsel for the parents of the deceased. Mason CJ,
Deane and McHugh JJ, at 603 held that the coroner was bound to hear the
appellants before making any findings adverse to their interests
and that
those interests included the protection of the interests of the deceased.
Their Honours took the view that to allow the
coroner's ruling to stand was to
run a risk, which could not be considered fanciful, that the coroner would
make adverse findings
concerning the appellants or the deceased without the
appellants being given the opportunity of being heard. In these circumstances
the coroner was ordered to reconsider the question of whether they should be
heard in respect of any potential findings of that nature.
Their Honours
noted, however, that it would be open to the coroner to conclude that it was
unnecessary to hear any such submissions
if he did not propose to make any
adverse finding against them. In separate dissenting judgments, Brennan J and
Toohey J agreed that
it was incumbent upon the coroner to hear the appellants
before making any adverse finding about them but took the view that since
there had been no evidence that any such finding was contemplated the Order
Nisi had been rightly discharged. The principle underlying
both the majority
and the dissenting judgments was that the requirements of natural justice were
invoked only by the threat of some
adverse finding. The principle was
succinctly stated by Brennan J, at 608:

  

  

   "Prima facie, before a finding is made, it
is incumbent on a coroner to
accord natural justice to any person upon whose conduct the coroner's finding
may reflect unfavourably."

   14. This principle has a clear application when the relevant issue is the
right to make final submissions and the coroner has
indicated that an adverse
finding is contemplated. However, it may give rise to some uncertainty when
the issue is one of bias or,
as in this case, apprehended bias. The problem
stems from the fact that in inquests, as in royal commissions, it is not
always clear
from the outset of the proceedings that an adverse finding will
be contemplated against some particular person. As the evidence unfolds,
new
lines of inquiry are sometimes revealed, and new allegations sometimes emerge.
If the threat of an adverse finding emerges for
the first time towards the end
of an inquest it will be only then that the coroner will become bound to
accord natural justice to
the person in question. If that person then raises
an issue of apprehended bias it may be protested that to prohibit the
completion
of the proceedings and have a fresh inquest convened would involve
unacceptable delay and expense. On the other hand, if the objection
is made at
some earlier time it may be protested that the evidence does not reveal
sufficient risk of an adverse finding to justify
any order in favour of the
objector. Indeed, the whole issue of apprehended bias may have to be argued on
the bases of supposition
and speculation. In my view, the potential risk of
injustice arising from such a dilemma requires a somewhat liberal approach to
the evidentiary requirements imposed upon potential objectors seeking to raise
issues of apprehended bias in relation to coronial
inquiries.

  

   15. In the present case, the prosecutor was advised by the first respondent
that he should be represented at the
Inquest and there were clearly grounds
for anticipating some questioning of the adequacy of the procedures employed
at Quamby to
ensure the safety of detainees at risk. There is an apparent
risk, which cannot be dismissed as fanciful, that the evidence might
raise
issues as to whether adverse findings should be made against him and that the
first respondent might be obliged to make a judgment
about those issues. It is
true that the evidence does not enable the precise nature of any such
potential findings to be identified
but, in my view, the existence of that
risk would be sufficient to warrant the granting of the relief sought if the
prosecutor were
able to establish facts and circumstances sufficient to give
rise to the necessary apprehension of bias.

  

   The issue of prejudgment

  

   16. Mr Erskine submitted that the issue of prejudgment relied upon by the
prosecution simply could not arise since it was
not a coroner's function to
pass judgment on the wisdom of a judicial decision such as refusal of bail. He
pointed out that bail
applications are frequently made in superior courts and
are sometimes reviewed on appeal. The legislature could scarcely have intended
that a coroner be empowered to review the merits of decisions made or affirmed
by, say, the Full Court of the Federal Court of Australia.
He maintained that
public policy, to say nothing of the dictates of judicial comity, militated
against any view that the power conferred
upon coroners in this Territory
should be interpreted as authorising such an exercise.

  

   17. Mr Erskine argued that the scope
of the powers and duties upon a
coroner were limited to those conferred by the Coroners Act 1956 . Section 12
of that Act made it
clear that the primary duty of a coroner was to determine
the manner and cause of death. He conceded that section 24 provided that
a
coroner who was holding an inquest into a death in custody should include
findings as to the quality of care, treatment and supervision
of the deceased
person which in his or her view contributed to the cause of death. He
submitted, however, that the reference in section
24 to the quality of care,
treatment and supervision obviously meant care, treatment and supervision
during such time as the deceased
person had been in custody. He was not in
custody at the time of the decision to refuse further bail. Accordingly, Mr
Erskine contended,
the decision itself could not fall within the ambit of
those matters which the Coroner was authorised to consider by the terms of
section 24.

  

   18. It was true that section 58 authorised the coroner to make
recommendations to the Attorney-General on any
matter connected with an
inquest on inquiry including matters related to public health or safety or the
administration of justice
but Mr Erskine submitted that this section must be
read in the context of sections 12 and 24. Hence, whilst it provided a wide
discretion
to the Magistrate to make recommendations to the Attorney-General,
it did so only in relation to matters "connected with an inquest
or inquiry".
That phrase, he argued, must be taken to refer only to matters falling within
the ambit of sections 12 and 24. It did
not authorise any review of antecedent
judicial decisions.

  

   19. In reply, Mr Thomas submitted that it was clearly relevant
to consider
what occurred at the hearing of the deceased's application for bail since that
was the fateful decision which led to
him being returned to Quamby. In these
circumstances, he maintained that the hypothetical, fair minded observer might
have an apprehension
that the first respondent might not bring an impartial
and unprejudiced mind to his role as coroner. It was also submitted that
whilst
it may not be open to a coroner to inquire into what occurred on a bail
application before a superior court he did have jurisdiction
to inquire into
what occurred in relation to such an application before the Magistrates Court.
However, these arguments appear to
overlook the distinction between an
examination of what occurred during the course of proceedings and a
reconsideration of the merits
of the judicial decision taken as a consequence
of those proceedings.

  

   20. In my view Mr Erskine is correct in his contention
that it is not open
to a coroner to re-examine judicial decisions and, clothed with the benefit of
hindsight, deliberate about the
wisdom of the course adopted. Of course, that
does not mean that he or she is precluded from examining the conduct of the
proceedings
in which any such order was made. For example, a coroner might
explore allegations that salient facts had been withheld from a magistrate
or
judge provided, of course, that the withholding of those facts could be shown
to be sufficiently relevant to matters properly
falling within the coroner's
field of inquiry. It is conceivable that some measure of prejudgment might
arise even in relation to
issues concerning the conduct of proceedings. For
example the resolution of some question as to whether or not material evidence
was withheld may be dependent upon the evidence of particular witnesses in
relation to whom the judge or magistrate has already made
findings of
credibility. In the present case, however, Mr Thomas has been unable to
identify any such issue in relation to which
it could be said that some
question of prejudgment arises.

  

   21. Having considered all of the evidence and, in particular,
the
transcript of the proceedings before the first respondent in September 1996, I
am not satisfied that the first respondent has
made any determination which
could involve any suggestion of prejudgment in relation to any matter properly
falling within the ambit
of his inquiry under the Coroners Act. On the
contrary, I am satisfied that it would not be proper for him or for any other
coroner
appointed in his stead to purport to re-examine the wisdom of the
decision to refuse the deceased bail. Hence, in my view no issue
of
prejudgment arises in relation to this matter.

  

   The issue of apprehended bias

   22. There is, however, one further issue
that arises in relation to the
issue of apprehended bias and that is the risk that members of the public may
feel some apprehension
that the first respondent's decision, whether
reviewable or not, may have had some causal connection to the deceased's
decision to
attempt suicide and in these circumstances may not bring a
completely impartial mind to the determination of other factors which
might
have contributed to that decision. As Mr Thomas put it in his submissions in
reply, there may be an apprehension as to the
"the possibility that the
coroner may seek to deflect criticism from the bail application to other
parties".

  

   23. Mr Erskine
sought to answer this contention by pointing out that the
Magistrate's decision was, for practical purposes, the only one reasonably
open to him. I accept that submission. In the circumstances revealed by the
evidence before him, the decision to remand the deceased
in custody and
declare him to be a detainee at risk was the only responsible course
available. It is easy to be critical in hindsight
especially when a tragedy
ensues but the evidence revealed that there was nowhere for the deceased to go
and no-one to care for him.
To have granted bail in these circumstances would
have involved casting adrift an emotionally disturbed young man who had just
attempted
suicide and leaving him on the streets, homeless and without support
or supervision. On the material before me I am satisfied that
no reasonable
member of the community properly acquainted with the facts could properly
criticise the first respondent's decision.
Indeed, Mr Thomas did not contend
to the contrary. This is obviously a matter of considerable importance in
evaluating the prosecutor's
claims of apprehended bias. It is clear that the
hypothetical, fair minded observer must be taken to have knowledge of the
actual
circumstances of the case: Laws v Australian Broadcasting Tribunal [1990] HCA 31; 
[1990] 170 CLR 70 per Mason CJ and Brennan J at 87. Once knowledge of the
facts concerning the bail application is attributed to
the fair minded
observer then it seems to me that such a person would inevitably conclude that
no question of blameworthiness could
arise and the basis for any concern about
deflection of guilt would be substantially removed.

  

   24. The only remaining question
is whether, notwithstanding the soundness
of that decision, such a fair minded and informed observer could entertain a
reasonable
apprehension that the first respondent might nonetheless feel some
sense of responsibility for what ensued and that this might impinge
upon his
ability to impartially judge other issues arising in the case. Mr Erskine
sought to address this issue by pointing out that
by training and experience
judicial officers are accustomed to putting aside purely emotive
considerations and bring a detached mind
to their decisions. Courts have long
recognised the general validity of this proposition:. see, for example Re The
Queen and His
Honour Judge Leckie ; Ex parte Felman [1978] 52 ALJR 155 at 160.
I personally doubt whether all fair minded members of the community
are
confident that judicial officers are so insulated from self-doubt and other
emotional reactions. The truth is that judges and
magistrates are as sensitive
to human tragedy as their fellow members of the community and share the same
emotional responses. However,
it is also true that they are frequently called
upon to put aside their own feelings and make objective judgments in the face
of
emotionally charged circumstances. In any event, the relevant test is
whether the circumstances give rise to a reasonable apprehension
that the
judge or magistrate in question will not approach the case impartially or
without prejudice. This ultimately involves an
exercise in judgment. I accept
Mr Thomas' submission that the test must now be taken to be a stringent one in
the light of the decision
of the High Court of Australia in R v Watson; Ex
parte Armstrong [1976] HCA 39;  [1976] 136 CLR 248 at 262 and Livesey v New South Wales Bar
Association at 293-4, 298 and Australian National Industries Limited
v Spedley
Securities Limited [1992] 26 NSWLR 411 at 419 and 447. Nonetheless, I do not
accept that any reasonable apprehension of
bias arises from mere speculation
that the first respondent might be influenced by misgivings about an obviously
correct decision.

  

   Waiver and delay

  

   25. It was also contended that the prosecutor had waived his right to
maintain the present objection
since he had known at least since October 1997
that he was to appear as a witness at the Inquest and had known for at least
some
time prior to the 11 December 1997 both the identity of the Coroner and
the fact that the Coroner had been the Magistrate who had
refused the deceased
bail in September 1996. On the other hand Mr Thomas relied upon evidence that
the prosecutor did not appreciate
that the latter fact had any legal
significance until it was drawn to his attention by his legal advisors on 11
December 1997.


 

   26. It is plain that, at least in relation to litigation inter partes, a
party may waive his or her right to maintain an objection
on the ground of
apprehended bias: Re McCrory; ex parte Rivett [1895] 21 VLR 3; Vakauta v Kelly [1989] HCA 44; 
[1989] 167 CLR 568; Kennedy v Cahill [1995] 118 FLR 60. However, a party will
not be held to have waived his or her entitlement
due to a delay in raising an
objection of this kind unless he or she can be shown to have had full
knowledge of all the surrounding
facts and circumstances. In the present case
the evidence suggests that the prosecutor knew of the identity of the coroner
and knew
of his prior involvement in the bail application sometime before the
application was made. I am also satisfied that the coroner's
suggestion that
the prosecutor should be represented in the proceedings was sufficient to warn
him that evidence might emerge which
could justify an adverse finding. In my
view, however, it cannot be said that such a suggestion gave rise to an
implied intimation
that an adverse finding against him was actually
contemplated. Nor did it convey any information about the nature of any
adverse
finding which might be made.

  

   27. Difficulties of this nature will frequently preclude any finding of
waiver due to delay
in raising issues of natural justice in relation to
coronial proceedings. This difficulty arises because, unlike proceedings inter
partes where the issues are defined by the pleadings, coronial proceedings are
more inquisitorial in character and those against
whom adverse findings are
made will not usually have been forewarned prior to the commencement of the
proceedings. Furthermore, even
if allegations are made against them during the
course of those proceedings, other evidence may demonstrate their falsity or
they
may otherwise be discounted. A coroner is not bound to observe the rules
of natural justice in relation to each and every person
who may be referred to
during the course of the inquiry. Such an obligation arises only when an
adverse finding against the person
in question is contemplated. Unless and
until some intimation to that effect is made no question of waiver due to
delay can usually
arise. Even then, it will usually be necessary to establish
that the person had sufficient particularity of the nature of the finding
likely to be made against him or her to support a finding of waiver. That is
so because a person who may be taken to have waived
his rights to object in
circumstances where only a relatively minor criticism is contemplated should
not be taken to have waived
his rights to maintain a similar objection in
circumstances where he or she faces a more serious allegation such as
manslaughter
and, perhaps, possible committal for trial.

  

   28. In the present case, I am not satisfied that the prosecutor had full
knowledge
of the relevant facts and circumstances. Indeed, I do not accept
that he had full knowledge of those facts and circumstances even
at the time
the application was made. Consequently, I am not satisfied that there has been
any waiver of his right to maintain his
objection on the ground of apprehended
bias.

  

   29. However this finding does not mean that the conduct of the objecting
party
is irrelevant. As Ryan J pointed out in Trustees of Christian Brothers v
Cardone [1995] FCA 1309;  [1995] 130 ALR 345 at 365, the conduct of the objecting party can be
weighed in the balance in determining objectively whether
a reasonable
apprehension of bias remains after disclosure of the relevant facts. Hence, in
the present case it is appropriate to
take into account the fact that the
prosecutor knew of the facts said to give rise to apprehended bias on the part
of the first respondent
and must have known that he was likely to examine the
quality of care, treatment and supervision of the deceased whilst in a
detention
centre which the prosecutor managed. Despite this knowledge he
refrained from making any objection. In my view the hypothetical,
reasonable
observer would take that fact into account and would also take into account
the fact that other people, such as the mother
of the deceased, opposed the
Coroner's disqualification notwithstanding full knowledge of the facts said to
give rise to the apprehended
bias. Considerations of this kind could not, of
course, provide any answer to a clear case of apprehended bias especially if
the
evidence revealed a substantial risk of real prejudice to the prosecutor.
In the present case however, these considerations strengthen
my view that the
relief sought by the prosecutor should be refused.

  

   30. The delay is also significant because to now accede
to the prosecutor's
submissions would prejudice the public interest in the speedy determination of
important questions concerning
not only the manner and cause of the death of
the deceased but the adequacy of procedures to ensure the safety of young
people detained
at Quamby. It would also involve significant expense to other
people represented at the Inquest. In particular, I was informed from
the Bar
table, without objection, that the mother of the deceased was not on legal aid
and that it was unlikely that she would be
able to afford to sustain the costs
of legal representation throughout a further inquest if it were necessary for
the proceedings
to be recommenced before a different coroner.

  

   31. Prerogative writs are, of course, a discretionary remedy and even if I
had taken the view that the facts and circumstances relied upon by the
prosecutor did give rise to what might be described as a marginal
case of
apprehended bias I would in any event have refused the application.

  

   32. The application is dismissed.