R v Lalor & Ors [2006] ACTSC 81 (18 August 2006)

Last Updated: 13 February 2007

R v CORONER GRANT LALOR & ORS

[2006] ACTSC 81 (18 August 2006)

CORONERS - order nisi - application to prohibit further hearing of inquest by Coroner - reasonable apprehension of bias.

Coroners Act 1997, ss 13, 38

Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 71 ALJR 294

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 205 CLR 337

R v Doogan [2005] ACTSC 74

Fried v National Australia Bank Ltd [2000] FCA 787

No. SCC 259 of 2006

Judge: Higgins CJ

Supreme Court of the ACT

Date: 18 August 2006

IN THE SUPREME COURT OF THE )

) No. SCC 259 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Applicant

AND: CORONER GRANT LALOR

First Respondent

AND: THE DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

EX PARTE: VIDESHINIE MALIYASENA

Prosecutor

ORDER

Judge: Higgins CJ

Date: 18 August 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The order nisi be made absolute.

2. The first respondent be prohibited from further hearing the proceedings by way of inquest into the death of Cecil John Foster.

1. This is an application by way of order nisi seeking an order in the nature of prohibition to stay the further hearing by the first respondent of an inquest into the death of Cecil John Foster.

2. The deceased died on 19 April 2004 at Canberra Hospital. An inquest was required by virtue, presumably, of s 13 of the Coroners Act 1997 (Coroners Act). A directions hearing was held before the first respondent, on 23 March 2006. The inquest was listed to commence on 6 April 2006. I will refer to the first respondent as "the Coroner".

3. One of the witnesses was to be Dr Videshinie Maliyasena, the prosecutor, an intern at Canberra Hospital at the time of Mr Foster's death. She was the most junior of a number of medical practitioners involved in Mr Foster's treatment during his final stay in hospital.

4. All of the medical practitioners concerned in Mr Foster's treatment were, up until 4 April 2006, to be represented at the inquest by a lawyer from the ACT Government Solicitor's Office.

5. On that day, without explanation to her, Dr Maliyasena, alone of all medical witnesses, was informed that the ACT Government Solicitor would no longer provide representation for her. She was advised to get private representation. This she did. That afternoon a brief of the proposed evidence, as then known, was forwarded to Minters Solicitors, who were, at short notice, retained to act on her behalf.

6. Minters Solicitors retained counsel, Mr Ian Bradfield, to appear on her behalf.

The Background

7. From the brief of evidence prepared by Detective Constable Prudence Beasley, it appears that Mr Foster was admitted to Canberra Hospital on 7 April 2004. He was suffering from cirrhosis, a consequence of chronic alcoholism. The treating doctor was Dr Corbett, a specialist gastroenterologist and visiting medical officer. It was noted on the clinical notes of 15, 17 and 19 April 2004 that Mr Foster had increasing potassium levels in his blood. That is seen as indicative of a likely fatal outcome.

8. Mr Foster had been admitted to Bega Hospital on 20 February 2004. He was suffering from ascites secondary to cirrhosis of the liver. He also had a large umbilical hernia. It was weeping ascitic fluid, apparently following a kick to the abdomen he allegedly received from his girlfriend. An infection had set in. His doctor, Dr Salisbury, transferred Mr Foster to Canberra Hospital because of his worsening condition.

9. Dr Corbett admitted Mr Foster to Canberra Hospital. He, with his registrar, monitored and treated Mr Foster. Dr Corbett was concerned to have the hernia treated but that required control of his ascites. At the end of March, Dr Corbett handed care of Mr Foster to a colleague, Dr Kaye, another specialist gastroenterologist and visiting medical officer.

10. Dr Kaye went on leave from 16 April 2004 returning on 19 April 2004. In his absence, Dr Corbett assumed responsibility for the care of Mr Foster.

11. On Saturday 17 April 2004 Dr Corbett arranged with a Dr Lim to plan the umbilical hernia repair and for a visiting hepatologist, Professor McCaughan, to decide if the procedure could be carried out at Canberra Hospital.

12. Dr Corbett indicated to Detective Constable Beasley that up to the morning of 19 April 2004 when he handed care of Mr Foster back to Dr Kaye, he had been unaware that a test had been done of a blood sample taken from Mr Foster on Saturday 17 April 2004. That had allegedly shown a rising potassium level.

13. On 18 April 2004 at 6.00 pm the intern, Dr Maliyasena noted the blood test report and the elevated potassium levels. She allegedly drew that information to the attention of the medical registrar on duty, Dr Fisher.

14. It is suggested that neither Dr Maliyasena nor Dr Fisher drew the attention of either Dr Chapman, Dr Kaye or the registrar who took over from Dr Fisher (as from 19 April 2004), to the result. The new registrar on duty was Dr Singh. Nor did any other laboratory or staff member at Canberra Hospital do so.

15. A gastroscopy was performed by Dr Thompson on 19 April 2004. Mr Foster went into cardiac arrest on the evening of that day. It was then found that his potassium levels had reached 7.7 (normal being 5). The level on the Saturday had been recorded as 6.9. Mr Foster died as a result of acute renal failure.

16. Neither Dr Corbett, Dr Kaye, Dr Thompson nor Dr Singh reviewed the clinical notes containing blood test results before or during or shortly after the gastroscopy of 19 April 2004.

17. There is, no doubt, a question for the Coroner as to whether, had the elevated potassium levels been noted by a relevant specialist medical practitioner before the evening of 19 April 2004, Mr Foster's death could have been avoided. There must also be a question as to whether any of the medical team from 17 to 19 April 2004 should have informed the then treating specialist of the elevated potassium levels and as to whether any of the treating specialists should have reviewed the clinical notes before the gastroscopy was undertaken.

The Proceedings before the Coroner

18. Prior to 6 April 2006, Mr Bradfield had decided that he needed more time to assess Dr Maliyasena's interests. He had also been advised that the Coroner intended to reveal a previous association with Dr Kaye.

19. At the hearing, Ms Margaret Hunter was appointed to assist the Coroner as nominee of the Director of Public Prosecutions (DPP), Mr Richard Refshauge SC. Ms Louise Donohoe appeared for the Territory and for Drs Kaye and Corbett and, it appears, all other medical and hospital staff. Mr Ian Bradfield sought leave to appear for Dr Maliyasena.

20. The Coroner indicated that he had not expressed any view, or given any direction, that Dr Maliyasena or anybody else be separately represented, though he had suggested that counsel for the Territory consider whether all medical witnesses could properly be represented by the same counsel.

21. Ms Donohoe said that she perceived no conflict of interest between those she represented. There was no explanation as to why Dr Maliyasena, a mere intern, should have been the only one advised to seek separate representation.

22. The Coroner made the point that, even at 6 April 2006, he had not received all witness statements. He directed that Dr Fisher, the registrar on duty prior to Dr Singh, Dr Simone Strasser and Dr Robert Hirkes be permitted to give evidence by telephone. The latter two were, it appears, to give expert evidence but had not been involved in Mr Foster's care.

23. His Honour noted that s 38 of the Coroners Act, required, "where practicable", 14 days public notice of a proposed hearing and that that had not been complied with. He proposed that the inquest proceed on 6 and 7 April 2006 and then be adjourned for at least two weeks with the date of resumption being advertised in accordance with s 38.

24. Ms Hunter was then invited to proceed to call evidence. At that point, Mr Bradfield made an application to adjourn the hearing forthwith.

25. Mr Bradfield, when asked his grounds for seeking an adjournment, responded:

I require further time in order to obtain proper instructions from Dr Maliyasena [spelling corrected from transcript]. I require further time in order to consider the expert's [sic: experts'] reports. I need further time in order to consider whether or not Dr Maliyasena, in the proper interest of representing her and preparing her case, also needs an independent expert's report, to comment not only upon her conduct but also on the conduct of other doctors which are touching upon the hospital ...

The Coroner:

Well, I don't have any evidence of her conduct because I don't have a statement from her. I have a copy of clinical notes that she made, or notes that she made of what she did at the appropriate time, and it would appear on the face of those notes that she's taken appropriate steps. That's all I can say in relation to the matter, I don't have a statement from her, I don't know what it is you say to prepare her case.

26. Clearly, his Honour had not appreciated the potential significance of the decision of the ACT Government Solicitor to require Dr Maliyasena to obtain separate representation. Thus, even if, as his Honour observed, nothing in the brief before him warranted any adverse comment concerning her, he could not then know what course the ACT Government Solicitor might take in that regard. Clearly, the latter considered there was a potential conflict between Dr Maliyasena and the persons he represented.

27. Mr Bradfield went on to explain that there could be an issue as to what information Dr Maliyasena had conveyed to the Registrar, Dr Fisher. He had recently been given a draft witness statement of Dr Fisher. He also submitted that, if blame was to be attributed, "that needs to be placed where it should correctly be placed".

28. He pointed out that there were other doctors who had contact with Mr Foster and could or should have reviewed the clinical notes, including Dr Singh (the replacement Registrar as at 19 April 2004). There was also the doctor who performed the "gastrectomy" [sic: gastroscopy].

29. To that, his Honour agreed with Mr Bradfield that Dr Maliyasena was entitled to "proper and ample time" for her case to be prepared. Mr Bradfield submitted that "24 hours" was not sufficient time.

30. That proposition was, so far as Mr Bradfield's position was concerned, unanswerable. However, his Honour responded:

You've had since 24 February.

31. Taken on its face that would have been an egregious error, but his Honour explained that he was referring to Dr Maliyasena herself not Mr Bradfield. He said:

You haven't, but the doctor has. She was represented on that day, I was advised, by the Government Solicitor. Now, she's been legally represented as at that date. If the Government Solicitor wished to take the responsibility to represent every doctor and not perceive that there may be some conflict of interest, that's a matter for the Government Solicitor and the doctors on behalf of whom he is acting.

If, at some stage subsequent to that, for whatever reason, whether it be by virtue of the fact that counsel who has been nominated by Mr Refshauge to appear in this matter, or by her own volition or some other purpose [sic: reason] has asked for separate representation, that is a matter that is to be weighed up in the totality of the opportunity that she's had to be represented.

Mr Bradfield:

That's right.

32. Whilst it is correct to consider as relevant to a proposed adjournment the prior representation of a person whose interests may be affected by the inquest, it is a puzzling suggestion that the Government Solicitor's decision initially to represent all involved doctors somehow should be taken as disentitling Dr Maliyasena, when the Government Solicitor himself, not Dr Maliyasena, terminated the retainer and was aware or should have been, of any conflict of interest, to a fair opportunity to instruct alternative legal practitioners. It is even more puzzling that his Honour appeared to assume, despite having been clearly told that the separate representation of Dr Maliyasena had been directed by the ACT Government Solicitor, that the request for it may have come from the DPP or Dr Maliyasena herself.

33. His Honour seemed also to assume, without any apparent foundation, that Dr Maliyasena's disquiet at being singled out by the ACT Government Solicitor for separate representation was somehow a reflection on him. It was not suggested that the Coroner himself was "targeting" Dr Maliyasena, but it was a fair inference that the ACT Government Solicitor might have wished to be free to do so.

34. Mr Bradfield attempted to make it clear that there was no suggestion that the Coroner was responsible for the Government Solicitor's direction to Dr Maliyasena so as to call his impartiality into question:

I have, and I say in open court, advised her openly of my view of your Honour's integrity and of my view of your fair-handedness and evenness in monitoring and conducting coronials.

35. Even so, his Honour rejected the application for adjournment Mr Bradfield had made.

36. His Honour's desire to proceed with expedition is understandable. However, it was clear that, although his Honour at that stage did not entertain an expectation that Dr Maliyasena would be subject to adverse comment, the ACT Government Solicitor regarded her interests as potentially in conflict with the other medical witnesses involved in Mr Foster's care. That included Dr Kaye.

37. It was an error to have regarded Dr Maliyasena's interests in presenting a case as having been sufficiently protected by the ACT Government Solicitor representing her from 24 February to 4 April 2006. The ACT Government Solicitor could not have done so unless there was no conflict foreseeable between her interests and those of the other medical officers concerned with Mr Foster's care.

38. A robust approach to case management, though important to ensure the efficient discharge of the Court's business, cannot be so rigid and uncompromising as to deny substantial justice to an interested party (see Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 71 ALJR 294). That was denied by his Honour's refusal to allow Dr Maliyasena's new representatives an opportunity to take instructions.

39. However, as it happened, that issue was foreclosed by the events which followed.

40. Mr Bradfield had anticipated that his Honour might raise a personal association he had had with Dr Kaye. At the point his Honour announced that he would proceed, Mr Bradfield reminded the Coroner of that matter. His Honour agreed to address that issue and stated:

I received treatment from Dr Kaye on Monday a week ago, the date being 24^th - no, 27 March. I saw Dr Kaye 5 years prior to that for a medical check-up. Nothing that Dr Kaye said, did or advised me of in any way causes me any concern about the conduct of this matter. I intend to proceed.

41. In response to a question from Mr Bradfield, his Honour further revealed that whilst there were no current arrangements for him further to consult Dr Kaye, "It may be every two years I'll have a check-up for the same complaint with the doctor".

42. His Honour then denied Mr Bradfield's request that he disqualify himself because of that association with Dr Kaye.

43. Mr Bradfield persisted, however, and handed up written submissions addressing the question of reasonable apprehension of bias. It was clear that Mr Bradfield was, from the outset, aware that the Coroner had previously and recently been treated as a patient of Dr Kaye.

44. The essence of that submission was whether, as observed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 205 CLR 337, per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6]:

... a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

45. That principle is, of course, applicable to coronial inquiries. The recent decision of R v Doogan [2005] ACTSC 74 affirms that contention.

46. It was apparent that Dr Kaye was a significant witness in the coronial inquest. It was apparent that an issue might arise as to the treatment given and care prescribed by Dr Kaye before he handed responsibility for care of Mr Foster, temporarily, back to Dr Corbett. He had taken over Mr Foster's care on 1 April 2004 at the end of Dr Corbett's rotation. It further appeared that an issue might arise as whether Dr Kaye (inter alia) should have inspected the clinical notes, including those kept by Dr Maliyasena, earlier than was done once care was handed back to him on 19 April 2004.

47. It was also apparent that an issue could arise, whether exposed by Dr Kaye or not, as to whether the intern, the resident, the registrar, the pro-tem visiting medical officer, the resident taking over or the visiting medical officer resuming care should have made enquiry or informed another of the deteriorating condition of Mr Foster as revealed by the worsening potassium levels found on the blood test results.

48. For his Honour to assert that he could see no grounds for criticism of Dr Maliyasena on the initial brief and that nothing Dr Kaye said, did or advised him had caused him "any concern in the conduct of this matter" was to completely miss the point being put to him concerning the possibility of a perception that he might be affected in his judgment by his association with Dr Kaye.

49. It seems that his Honour felt that there was, on the material before him at the outset of the inquest, no foreseeable likelihood of adverse comment about Dr Maliyasena. However, he also commented that he would not be perceived as biased in relation to Dr Kaye because "I have not in any way had cause to question the doctor's integrity". To conclude from that that no reasonable possibility of a perception of conflict of interest would arise was seriously to misunderstand the concept.

50. The point was that other witnesses, to deflect possible criticism of them "might" (and that is the test) seek to apportion some blame to Dr Maliyasena. Dr Fisher had, as Mr Bradfield then knew, though the Coroner had yet to receive the evidence of it, apparently sought to deflect some blame towards Dr Maliyasena. Their proposed evidence was likely to be in conflict. It was entirely foreseeable that those representing Dr Fisher or others might attempt to enlist Dr Kaye's support for a proposition that Dr Maliyasena should have acted more assertively or differently than she did.

51. In any event, each of the other doctors could well have asserted that Dr Kaye, as the responsible specialist, had failed to give specific and clear instructions as to the oversight of Mr Foster's care.

52. It was a serious and well-founded application which Mr Bradfield made.

53. Regrettably, however, his Honour failed to appreciate that. His initial reaction was:

Well, I find it impertinent that you firstly ask for the adjournment, and then when you've been refused that, you then seek to have me disqualified. If you were sincere in your application for disqualification it should have been your first application, not your subsequent one.

54. Certainly, it would have been better to have suggested to his Honour that he should make his disclosure first before considering the adjournment issue. However, as his Honour had previously indicated, according to counsel, that he intended so to do, it was understandable that counsel might not wish to pre-empt his Honour's disclosure. It is a preferable practice that such disclosures be made as soon as is practicable in a proceeding, before proceeding, as his Honour did, to other matters.

55. Nevertheless, his Honour adjourned to give consideration to Mr Bradfield's written submissions. For some reason, his Honour took issue with the description of his treatment by Dr Kaye as "a procedure" not "a treatment". That was a distinction without a difference. It is disquieting that his Honour chose to make an issue of it.

56. As to the suggestion that the relationship with Dr Kaye could lead to a possible perception that Dr Kaye would be more favourably treated, his Honour said:

I'm totally against you and I find it impertinent.

And went on to say:

Well, there would be no fair-minded person within this Territory who would ever have, in my view, such perception, and I find the submission totally impertinent. I find, as I said, your submission impertinent on the basis that if you were fair dinkum in this submission, it was your primary submission.

If your client perceives that a fair-minded member of the Australian Capital Territory would have a perception of bias, that is the initial application that should have been made.

57. That comment of his Honour as to timing would have had more force, though it could not affect the validity of the objection concerning perceived bias, had his Honour made his disclosure at the outset rather than following the adjournment application.

58. The essential issue, however, is the perception to be attributed to the fair-minded observer.

59. His Honour himself conceded, indeed asserted, that his previous association with Dr Kaye led him to the view that, "Nothing that Dr Kaye said, did or advised me of in any way causes me any concern in the conduct of this matter".

60. It seems his Honour considered that because no discussion of or information concerning the death of Mr Foster had passed between himself and Dr Kaye he could not be embarrassed in conducting the inquest or perceived as biased.

61. Indeed, his Honour's apparent appreciation of the nature of the inquest seemed unduly narrow. He had commented to Mr Bradfield, when the latter indicated there might be issues relating to the "proper procedures and protocols" applied, inter alia, not only by Dr Maliyasena, but also Dr Fisher and "other doctors being pathology staff and reviewing doctors" that:

Well, they're not your concern, your concern insofar as Dr Maliyasena is concerned.

62. That view, if persisted in, would represent a profound misunderstanding of the interest that Dr Maliyasena might have in the proceeding, though that was, of course, only a preliminary expression of view and was qualified in the following discussion. It is also fair to observe that his Honour seemed to have a preliminary view that Dr Maliyasena had no cause for concern.

63. Unfortunately, that could not be guaranteed to be the continuing situation. His Honour was, in all probability, unaware that Dr Fisher had made a statement apparently contradictory of Dr Maliyasena's instructions to her legal representatives.

64. Further, with or without such a conflict, it was foreseeable that Dr Corbett and Dr Kaye, notwithstanding the expert reports obtained, might be asked to comment on the conduct or the protocols for the conduct of Dr Maliyasena, Dr Fisher, the pathology staff and other persons involved in Mr Foster's care.

65. Mr Refshauge SC, in his submissions to this Court, conceded that there was "no doubt" that the previous association between his Honour and Dr Kaye was such as to provide a reasonable ground for disqualification on the ground of perception of possible bias.

66. If any further support was needed for that concession it suffices to refer to the decision of Weinberg J in Fried v National Australia Bank Ltd [2000] FCA 787.

67. During the defendant's opening in that case the name of his Honour's accountant was mentioned. His Honour revealed immediately that the person named as "an accountant", was his accountant. However, no indication was given that the person named had any role, let alone a contentious role, in the proceedings. However, that changed a few days later. It was indicated that the accountant might be called as a witness. It was not possible then to indicate whether his evidence, if he was called, would be contentious.

68. A statement of his evidence, later provided, then indicated areas of possible contention. The defendants made an application that the trial judge, despite the many days of hearing that had elapsed, no longer continue to sit.

69. Weinberg J noted that his association with the accountant was purely professional, though he had gained some insight into his personality and character that might influence any assessment of his evidence. His credit would be in issue. His Honour personally felt no difficulty in making any finding as to the accountant's credit however that consideration was:

... of little consequence when considering whether the fair-minded observer might entertain a reasonable apprehension of bias.

...

70. In those circumstances, despite the applicant's strong submissions to the contrary, his Honour considered that it was "unavoidable" that he disqualify himself.

71. Mr Refshauge's supplementary submission was, however, that his Honour had been required to disqualify himself and, hence, erred in not doing so, only if it was reasonably foreseeable that some substantive issue might arise concerning Dr Kaye.

72. Mr Refshauge SC submitted that the question of Dr Kaye, or, indeed, Dr Corbett, being asked their opinion of Dr Maliyasena's role was "too remote".

73. I do not agree. The very fact that Dr Maliyasena was advised by those representing all the doctors involved in Mr Foster's care, particularly Drs Fisher and Kaye, to seek separate representation indicates that they perceived a conflict between her interests and theirs and, also importantly, no conflict between the interests of those other doctors.

74. The fact, also, that his Honour would describe a well founded application, based on a perception that Dr Kaye's opinion might receive undue weight, as "impertinent" adds to the perception arising from the association between the Coroner and Dr Kaye.

75. In the result, the order nisi is made absolute. The Coroner is prohibited from further hearing the proceedings by way of inquest into the death of Cecil John Foster.

76. I will hear the parties as to consequential orders and costs.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 18 August 2006

Counsel for the first respondent: Ms C Dowsett

Solicitor for the first respondent: Australian Government Solicitor

Counsel for the applicant

and second respondent: Mr R Refshauge SC

Solicitor for the applicant

and second respondent: ACT Director of Public Prosecutions

Counsel for the prosecutor: Mr I D Bradfield

Solicitor for the prosecutor: Minter Ellison

Date of hearing: 20 July 2006

Date of judgment: 18 August 2006