Conway v Jerram, Magistrate and NSW State Coroner [2011] NSWCA 319 (28 September 2011)

Last Updated: 10 October 2011

Court of Appeal New South Wales

Case Title:	Conway v Jerram, Magistrate and NSW State Coroner
Medium Neutral Citation:	[2011] NSWCA 319
Hearing Date(s):	28 September 2011
Decision Date:	28 September 2011
Jurisdiction:
Before:	Campbell JA at [1], [52] Young JA at [47]
Decision:	(1) Time for filing application for leave to appeal extended to 14 June 2011. (2) Application for leave to appeal dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CORONERS - inquest into death - jurisdiction of coroners - application to Supreme Court to require an inquest to be held - whether "manner and cause" of death have not been sufficiently disclosed - relevance of events preceding death to "manner and cause" of death - scope of "the interests of justice" APPEAL - leave to appeal - interlocutory orders and judgments - refusal to order inquest is interlocutory - did not involve an amount of $100,000 or more APPEAL - interference with discretion of court below - discretionary decision about what interests of justice require - House v The King standard of appellate review
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Coroners Act 1980 Coroners Act 2009 Supreme Court Act 1970
Cases Cited:	Re Doogan; Ex parte Lucas-Smith [2005] ACTSC 74; 193 FLR 239 House v The King [1936] HCA 40; (1936) 55 CLR 499 Josephine Conway v Mary Jerram Magistrate of NSW State Coroner [2010] NSWSC 371 X v Deputy State Coroner for New South Wales [2001] NSWSC 46; 51 NSWLR 312
Texts Cited:
Category:	Principal judgment
Parties:	Josephine Conway (Applicant) Mary Jerram, Magistrate and NSW State Coroner (First Respondent) The Hon. John Hatzistergos, NSW Attorney General (Second Respondent)
Representation
- Counsel:	K Borick QC (Applicant) D T Kell (Second Respondent)
- Solicitors:	Darryl Quigley Partner Lawyers (Applicant) Crown Solicitor, Submitting Appearance (First Respondent) Legal Services Branch, Department of Justice and Attorney General (Second Respondent)
File number(s):	2009/296133
Decision Under Appeal
- Court / Tribunal:
- Before:	Barr AJ
- Date of Decision:	03 May 2010
- Citation:	Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner [2010] NSWSC 371
- Court File Number(s)	2009/296133
Publication Restriction:

Judgment - ex tempore

1. CAMPBELL JA : On 3 May 2010 Barr JA rejected an application by the Applicant for an order under s 47(1) of the Coroners Act 1980 , requiring that an inquest be held into the death of a girl to whom I shall refer as M. M was the daughter of the Applicant. The decision of Barr AJ rejecting the application is Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner [2010] NSWSC 371.

2. These reasons relate to an application for leave to appeal against that decision. Because the question of whether an inquest is held is of understandable concern to the Applicant, I propose to give longer reasons than are usual concerning an application for leave to appeal.

3. M died on 12 November 2003 at the age of 16 when a car in which she was a passenger ran into a rock wall. M sustained injuries including some gross injuries to the brain of which she died some hours later.

4. The car in question had been stolen and was driven by a young man who was providing M with accommodation at the time. He has since been charged with a criminal offence concerning his driving having caused M's death. M had no traces of alcohol or drugs in her body.

5. A deputy coroner dispensed with an inquest into M's death. The State Coroner later declined to order a review of that decision.

6. The proceedings from which this application for leave to appeal is brought were not by way of appeal or judicial review but rather sought to outflank the decision to dispense with the inquest by an exercise of original jurisdiction of the Supreme Court.

7. Under s 47(1) of the Coroners Act 1980 :

"(1) Where the Supreme Court, upon an application made by, or under the authority of, the Minister or by any other person, is satisfied that it is necessary or desirable in the interests of justice that an inquest concerning a death ... should be held (whether or not an inquest concerning the death ... has been partly held and terminated or suspended), the Supreme Court may order that the inquest ... be held".

8. Before the summons that initiated these proceedings came on for hearing, the Coroners Act 2009 came into operation. Under its transitional provisions in Schedule 2 clause 20, the Supreme Court proceedings were to be dealt with under the provisions of the 2009 Act that corresponded with the previous provisions of the 1980 Act.

9. The provision of the 2009 Act that corresponds with s 47 of the 1980 Act is s 84(1), which provides:

"(1) The Supreme Court may, on the application of the Minister or any other person, make any of the following orders if the Court is satisfied that it is necessary or desirable to do so in the interests of justice:

(a) an order that an inquest concerning a death ... be held."

10. M had had a troubled adolescence, in the course of which she had come to the notice of the Department of Community Services (DOCS). She fell out with both her parents, came to Sydney from the country town in which she had been brought up, and became homeless.

11. Barr AJ recorded a submission made by the Applicant's counsel that:

"[A]n inquest is necessary in order to examine and understand events that took place in the life of M for a considerable number of months, even years, immediately before the night on which she died." [14]

12. It is desirable at this stage to say a little about the Coroners Act 2009 , as it is that Act that would have provided the context in which any inquest ordered by Barr AJ would have taken place.

13. Section 3(c) provides that one of the objects of that Act is:

"to enable coroners to investigate certain kinds of deaths ... in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths"

14. Section 6 defines a "reportable death" as including when a person has died a violent or unnatural death. M's death was clearly a "reportable death" .

15. Under s 10(1), the functions of the State Coroner include:

"(b) to ensure that all deaths, ... concerning which a coroner has jurisdiction to hold an inquest ... are properly investigated, and

(c) to ensure that an inquest ... is held whenever it is required by this Act to be held or it is, in the State Coroner's opinion, desirable that it be held".

16. Under s 21, a coroner has jurisdiction to hold an inquest concerning the death of a person if it appears to the coroner that the person's death is a reportable death. There would be no doubt that there would be jurisdiction under s 21 to hold an inquest into M's death.

17. As well, s 24 confers upon a senior coroner jurisdiction to hold an inquest into the death of a person who was a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 , within a period of three years immediately preceding the child's death. Barr AJ's judgment shows that there were over ten such reports. That would provide a further basis on which there would be jurisdiction to hold an inquest into her death.

18. However, s 25 confers on a coroner who has jurisdiction to hold an inquest concerning the death of a person, jurisdiction also to dispense with the inquest except in circumstances where an inquest is required to be held under Part 3.2 of the Act.

19. The only circumstance in which an inquest is required under that Part to be held that could possibly relevant to the present case, arises under s 27(1)(d), namely:

"(1)(d) if it appears to the coroner concerned that the manner and cause of the person's death have not been sufficiently disclosed (unless the case is one in which an inquest has been suspended or continued under section 78)".

Section 78 requires an inquest to be suspended when it appears an indictable offence has been committed. It does not apply to the present case.

20. Section 36 requires that the Ombudsman be provided by the coroner with all relevant material held by the State Coroner, relating to any death or suspected death of a person in circumstances that included that the person was a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within a period of three years immediately preceding the child's death. Pursuant to that provision, the coroner provided material to the State Ombudsman concerning M's death.

21. If an inquest concerning a death is held, s 81 requires it to make findings about whether the person has died and if so:

"( 1) The coroner holding an inquest concerning the death ... of a person must, at its conclusion or on its suspension, record in writing the coroner's findings or, if there is a jury, the jury's verdict, as to whether the person died and, if so:

(a) the person's identity, and

(b) the date and place of the person's death, and

(c) in the case of an inquest that is being concluded-the manner and cause of the person's death."

22. It will be seen from the foregoing summary of the Act, that the scope of the enquiry of the coronial inquest concerning a death, is limited to the matters identified in s 81. Further, the circumstances in which an inquest would be required to be held into M's death are comparatively limited, being if s 27(1)(d) applied. Even s 27(1)(d) is dependent on the coroner's opinion about whether the manner and cause of death has been sufficiently disclosed. As well, a broad discretion is conferred on the coronial authorities about whether to hold an inquest, that they would have jurisdiction to hold, were they so minded.

23. The test of "necessary of desirable to do so in the interests of justice", upon which s 84(1) depends, confers a broad discretionary power on the Supreme Court. Justice Barr accepted that "the interests of justice", in this expression, are wide: [35].

24. In particular, in this context "the interests of justice" can extend as to whether proper standards have been adhered to in the exercise of powers conferred for a public purpose, such as the powers of DOCS in relation to children in need of care.

25. The decision of Barr AJ did not involve an amount of $100,000 or more. Thus leave to appeal against it is necessary, pursuant to s 101(2)(r) Supreme Court Act 1970 .

26. Further, any decision under s 84 is interlocutory. A refusal to order an inquest at one time, does not preclude an order at a later time that there be an inquest. Such an order might be made if significant new evidence emerged after a first refusal to order an inquest. That the decision of Barr AJ is interlocutory provides a further reason why an appeal from it can only be brought by leave: s 101(2)(e), Supreme Court Act 1970 .

27. The summons seeking leave to appeal was not filed until 14 June 2011. This resulted from the Applicant having proceeded as though she had an appeal as of right and filing within time the documents that would have been appropriate, had she had an appeal as of right.

28. The Attorney-General, who is second respondent to the present summons, does not oppose the grant of any extension of time for filing the application for leave to appeal. The first respondent, the State Coroner, has already submitted to any order, save as to costs.

29. The judge recorded at [15] that a very large amount of evidence was put before him, including evidence detailing M's circumstances during the last few years of her life. The material before Barr AJ, included evidence relating to the history of M's dealings with DOCS, including its various reports concerning M, enquiries concerning M's death that were made by the New South Wales Ombudsman and also an internal departmental review concerning DOCS's management of its dealings with M. That review resulted in the report dated 20 September 2005 by Mr Dean Harrison, Clinical Psychologist, which was critical of DOCS and from which the judge quoted at [58] of his judgment. As well, the judge was reminded that since the time of M's death, there had been a Special Commission of Inquiry headed by the Honourable James Wood QC, into Child Protection Services in New South Wales.

30. His Honour did not accept that the interests of justice required there to be an inquest. He said, at [53]-[56]:

"Nevertheless, in construing the expression 'manner of death' in a broad way, the court must bear firmly in mind the limits to the coroner's jurisdiction. In 1826 Lord Bacon wrote this in his Maxims of the Law, Regula I -

'It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.'

In Harmsworth v State Coroner [1989] VicRp 87; [1989] VR 989 Nathan J was concerned about the limits of the Victorian Coroners jurisdiction to consider the circumstances of the death of a number of deceased persons, and particularly how death occurred. There had been a fire at a gaol in Victoria and a number of inmates had died. His Honour said this at 995-996-

'The coroner's source of power of investigation arises from the particular death or fire. A coroner does not have general powers of enquiry or detection (see s15(1) and s17(1)). The enquiry must be relevant, in the legal sense to the death or fire, this brings into focus the concept of remoteness. Of course the prisoners would not have died, if they had not been in prison. The sociological factors which related to the causes of their imprisonment could not be remotely relevant. This can be tested by considering how wide, prolix and indeterminate the inquest might be if each of the many facets of the individual personalities, of all those involved were to be considered. A coroner would be confronted with a need to enquire into the personal peculiarities of all of the prisoners who barricaded themselves in. Both those who relented and those who did not. Whether for example, one group or person suborned others, and if so why and how. The personalities of all of the prison officers who interacted with all of the prisoners could also be investigated. Even the interaction of all of the other prisoners at any time in Jika with the deceased. Such an inquest would never end, but worse it could never arrive at the coherent, let alone concise, findings required by the Act, which are the causes of death, etc. Such an inquest could certainly provide material for much comment. Such discursive investigations are not envisaged nor empowered by the Act. They are not within jurisdictional power.

Enquiries must be directed to specific ends. That is the making of the findings as required and set out in s19(1).'

In Re State Coroner; Ex parte Minister for Health [2009] WASCA 165 Buss JA said this [46]-

'Section 25(1)(c) does not, however, authorise a coroner to undertake a roving Royal Commission for the purpose of inquiring into any possible causal connection, no matter how tenuous, between an act, omission or circumstance on the one hand and the death of the deceased on the other. See R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74 (2005) 193 FLR 239 [28] (Higgins CJ, Crispin & Bennett JJ).'

In R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74 the Full Court of the Australian Capital Territory Supreme Court said at [29] that it was necessary to draw a line at some point beyond which, even if relevant factors which came to light would be considered too remote to be regarded causative."

31. The only reasons to doubt that those remarks are applicable to the present case are that Lord Bacon's Maxims is a work from 1597 (the 1826 date perhaps derives from the date of a reprint of Bacon's complete works that Google has digitised), and that the quotation from Lord Bacon originally appeared in a very different context to the present.

32. The particular submissions that were made in the court below were recorded at [59]-[60] as being:

"Relying on this material, Mr Hoy [counsel for the Applicant in the court below] submitted that there was a real question as to the extent to which the Department or other agencies either assumed or refused to take responsibility for M's circumstances and as to what systems were in place. If I may summarise his submission, it was that whatever the Department did was inadequate and ineffective. She was a homeless girl who died in the crash of a stolen car. Her assigned youth worker found out only after the event where she had been living in the days leading up to her death. It was submitted that the absence of system or if proper or effective system to protect a person so clearly at risk due to homelessness, mental health problems and instability was a matter that fell within 'manner' of death.

Finally, Mr Hoy tendered a mobile phone telephone record showing that during the last hours of her life M had made a large number of telephone calls and text messages. The last telephone call was made after midnight, a short time before M died, and lasted for more than 5 minutes. He suggested that an inquest might reveal important information from that material bearing on the manner of her death."

33. The judge had some doubts about whether all the factual matters on which this submission was based were correct, but for the purpose of the argument he was prepared to proceed on the assumption that those factual matters were correct. Even so, he declined to conclude that the interests of justice required an inquest. He held at [61]:

"The question remains whether the litany of matters relied on can bear upon the question that a coroner would have to ask, and if possible answer, at an inquest, namely, adopting the broad interpretation I have proposed, by what means and in what circumstances did the death of M occur. I have come to the conclusion that those matters cannot bear upon the question. They are in my opinion too remote and would be beyond the proper limits of the Coroner's jurisdiction. What, if anything, telephone records might reveal or lead to is speculative. It seems to me that the means by which and the circumstances in which the death of M occurred are explained by the circumstances set forth in the reports to the coroner made by the police officers and by the pathologist. To go any further back in time than the time at which M became a passenger in the motor vehicle driven by the young man would be to enter upon an inquiry that might never end."

34. In my view, the prospect of those conclusions being overturned on appeal is too remote to warrant the grant of leave to appeal. Mr Kevin Borick QC made submissions on behalf of the Applicant, concerning whether leave to appeal should be granted. His submission shows that he read [61] of the judgment as though the judge had decided that by what means and in what circumstances the death of M occurred, did not bear on the question he had to decide. In my view, this is a misreading of [61] - rather, what the judge was saying in [61] was that by what means and in what circumstances the death of M had occurred were the very things he had to enquire into, but that the additional matters, concerning the events that led up to the death, were not ones that would elucidate that question.

35. Mr Borick pointed out that the report of the pathologist who conducted an autopsy on M's body, noted injuries apart from the head injuries. Those additional injuries included:

"... Chest injuries included soft tissue haemorrhage in front of the heart, haemorrhage of both pulmonary radices, moderate bilateral blood aspiration. Blood was also present in the major bronchi. Posterior neck dissection failed to reveal fracture or joint separation of spine. No significant abdominal injuries were present. The left femur was fractured, multiple contusions were present over the upper and lower extremities and the abdomen. Multiple irregularity [sic] shaped scars, measuring up to 80mm in largest dimension were present on both upper extremities. There was no seat belt inflicted injury evident."

Mr Borick submitted that the trial judge assumed, rather than decided, that those additional injuries were not relevant to whether there should be an inquest.

36. The judge set out in his judgment those findings of other injuries. The scars might be indicative of previous attempts of self-harm, or injuries previously sustained from some external cause. However the intrinsic nature of these additional injuries, apart from the scars, is quite consistent with injuries sustained in a motor car accident. The brain injuries sustained in the accident were amply sufficient to cause death and there is no basis for requiring an inquiry about whether the injuries resulting in the scars were a cause of death.

37. Mr Borick also submitted that the judge made a basic error of law, in dealing with the manner and cause of death as those they were separate things rather than related entities. He also submits:

"2. In deciding whether or not an inquest should be held in circumstances such as this it is necessary to take into account:

(a) the mental and physical condition of the deceased before she entered the stolen vehicle;

(b) the manner in which she entered the vehicle, eg was it voluntary or involuntary entry.

(c) whether the manner and cause of the accident had been fully disclosed.

Because of the basic error none of those matters were considered by Barr AJ.

3. It was an error to conclude that the proposed inquiry might never end.

4. The judge erred by failing to take into account that justice needed to be accorded to both the deceased and her mother and in particular the emotional stress suffered by the mother."

38. I am not persuaded that the judge made the type of error that can be corrected on appeal, by treating manner and cause of death as separate. To the extent he treated manner and cause of death as separate, it was because of the way that the case was presented to him. The judge recorded at [40]:

"Mr Hoy, Senior Counsel for the plaintiff, accepts that it is neither necessary nor desirable to have an inquest to establish the identity of the deceased, the time and place of her death or the cause of her death. He submits that it is necessary to have an inquest, however, to establish the manner of her death. He submits that the word 'manner' in the expression 'manner and cause of death' should be construed liberally."

39. It is elementary that a party is bound on appeal by the manner in which the case has been conducted at first instance. In any event, Barr AJ treated "manner" of death as extending to by what means and in what circumstances did the death occur, which is in itself a close paraphrase of the composite phrase "manner and cause of death" .

40. The submissions of Mr Borick do not lead me to conclude there is a sufficient prospect of success on appeal, to warrant the grant of leave. This is because the decision of the judge was a discretionary one about what the interest of justice required in the instant case. Such a discretionary decision can be upset on appeal only within the limits laid down by House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.

41. I am not persuaded that there is a realistic prospect of establishing on a full fledged appeal, that the judge made any error of law, mistook the facts, failed to take into account any consideration he was required to take into account, took into account any consideration he was required not to take into account, or that his decision itself is outside the range of permissible discretionary decisions. In particular, there is nothing in the statutory provisions that govern a coroner's jurisdiction that make it necessary to take into account the matters Mr Borick listed in [2] of the submission quoted at [37] above. I would accept that there was a measure of hyperbole in saying the inquiry "might never end" , but that phrase could not have been intended to be taken literally. The judge's substantial conclusion, that inquiry into the events preceding M's entering the car was not an integral part of ascertaining the manner and cause of her death, and that inquiry into those events is not necessary or desirable in the interests of justice, is not one concerning which there is a real chance of establishing on appeal was not open to him. Further, while taking into account the distress of the Applicant would be permissible in applying s 84, there is nothing in the statutory framework that makes it an obligatory factor to be taken into account. There is not a realistic prospect of establishing on appeal that the judge's failure to make express mention of her distress amounts to a failure to take into account a relevant consideration, in the sense relevant to House v The King . In fairness to the judge, I should say that it was not clear, from the materials before us, whether any submission had been made to him that that was a factor he should take into account.

42. The judge recognised at [62]-[63] that a coroner has wide powers under s 82 of the Act to make recommendations that arise from an inquest. However he held that before the power to make recommendations became exercisable, there first had to be proper grounds for holding an inquest. There are insufficient prospects of that view of the law being held incorrect to justify leave to appeal being granted.

43. The judge also recognised that under the law as it was up to 1993, an inquest into the death of M would have been mandatory. However, he took the view that it was in accordance with the current law, that the question of whether there should be an inquest is to be decided by the court. Again, there are insufficient prospects of that view being held to be incorrect to justify the grant of leave to appeal.

44. Mr Kell, counsel for the second respondent, submitted that there was no question of general principle or public importance involved in this matter. In a general way, there is a question of public importance, in that the exercise of coroner's functions are matters of public importance. However in the present case, the manner in which those functions have been exercised is so tied up with the facts of the instant case, that it is not as though the present case would provide a suitable vehicle for elucidating any general principles about limits on the scope of the coroner's powers.

45. The second respondent does not seek costs in the event that the application for leave to appeal fails.

46. I propose that the time for filing an application for leave to appeal, be extended to 14 June 2011 but that the application for leave be dismissed.

47. YOUNG JA : Yes, I agree. It is clear that a coroner has a wide, but not unlimited, mandate to hold or not hold an inquest concerning the death of a person. When an inquest is held, the scope depends on all the circumstances. The inquest may be held to determine who is the deceased, when and how he or she died and this is the primary purpose of the inquest. As Justice O'Keefe said in X v Deputy State Coroner for New South Wales [2001] NSWSC 46; 51 NSWLR 312 at 325 [60]:

"The primary duty of the coroner conducting an inquest is to determine and record if a death has occurred and, if so, the identity of the deceased, the date and place of the death and the manner and cause of such death".

It is important that extraneous factors do not get in the way of that primary duty.

48. Just what is the scope of the inquest, is a matter for the coroner: a matter to be exercised using proper discretion and commonsense. As the ACT Full Supreme Court said in Re Doogan; Ex parte Lucas-Smith [2005] ACTSC 74; 193 FLR 239, 246 [28], in connection with the tragic Canberra bushfires, the coroner is not to conduct "a wide ranging inquiry akin to that of a Royal Commission, with a view to exploring any suggestion of a causal link, however tenuous, between some act, omission or circumstance and the cause", in that case, of a fire.

49. In the usual cases of death, a line must be drawn at some point beyond which, even if relevant, factors which come to light will be considered too remote from the event.

50. As I say, it is a matter for the exercise of discretion and commonsense by the coroner. In this case, the evidence shows, the senior coroners who considered the matter, directed their minds to these matters and made their decision. Justice Barr also directed his mind, examined what the coroners did and came to a decision, a discretionary decision, well within his mandate.

51. In my view, there are no reasonable prospects of an appeal succeeding and I agree that leave to appeal should be refused.

52. CAMPBELL JA : I agree with the additional remarks of Young JA. The orders of the Court are therefore those that I have proposed.

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