Beale v O'Connell & Ors

This recent decision of Jackson J considers the exercise of the Coroner’s powers under the Coroners Act 2003 and, in particular, the Coroner’s obligations to afford procedural fairness in deciding whether to exercise his or her power under s 28 of the Act to hold an inquest, and in deciding whether to revoke a decision that an inquest be held. It will be of particular relevance to those practising regularly in this jurisdiction, and those with interest in the principles pertaining to judicial review of administrative decisions.

Jackson J

19 June 2017

This matter concerned an application for judicial review of six decisions made by the respondent coroner in relation to an investigation into the death of the applicant's wife under the Coroners Act 2003 (the Act). [1]. The applicant's wife died after a struggle between them, during which he placed her in a headlock. [4]. The applicant was charged with murder but, following a committal hearing, the Director of Public Prosecutions advised the Queensland Police Service of his decision not to present an indictment on the charge. [8]–[9]. In May 2016, the first respondent decided to hold an inquest into the death. [11].

(1) Decision to hold an inquest

The applicant first challenged the respondent's decision to hold an inquest. [41]. Section 28 of the Act provides that an inquest may be held into a reportable death if the coroner investigating the death is satisfied that it is in the public interest to hold the inquest. [41]. Satisfaction that an inquest is in the public interest is a jurisdictional fact, or condition precedent, to the exercise of that power. [42].

The applicant's first ground of review was that the respondent failed to observe natural justice by not giving the applicant an opportunity to be heard before deciding to hold an inquest. [48]. Justice Jackson observed that if a coroner were obliged to afford the applicant an opportunity to be heard then it was “remarkable that there is no prior case in which such an obligation has been recognised or postulated”. [50]. His Honour concluded that the coroner was not obliged to afford the applicant an opportunity to be heard before deciding to exercise the power to hold an inquest under s 28. [51]–[52].

The second ground was that the decision to hold an inquest was an improper exercise of power because the first respondent failed to take into account a mandatory relevant consideration, namely, the transcript of the depositions from the committal hearing. [25], [53]. However, Jackson J held that there was “nothing in the subject matter, scope or purpose of s 28 in its context in the Act that requires a coroner ... to obtain all available and relevant documentary evidence ... before exercising the power to decide to hold an inquest”. [55]. This ground was also dismissed.

The third ground of review was that the first decision was an improper exercise of power because the decision was “so unreasonable that no reasonable person could so exercise the power". [57]. His Honour considered the formulation of the Wednesbury unreasonableness ground of review and the treatment of that ground in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. [58]–[61]. His Honour concluded, “whether the question [was] approached as one of Wednesbury unreasonableness, informed by the reasoning in Li … or as whether no reasonable authority could properly have arrived at the first decision”, it was not made invalidly. [61]. 

(2) Refusal to revoke the decision to hold an inquest

His Honour first considered whether the refusal to revoke the decision to hold an inquest was a decision to which the Judicial Review Act 1991 applied. [65]–[73]. His Honour held that a coroner has a power to revoke a decision made under s 28, and that the decision whether to do so is one properly amenable to judicial review. [73].

The applicant's first ground of review was that the first respondent failed to afford natural justice in refusing to permit the applicant to obtain the depositions and put them before the first respondent. [74]. Alternatively, the applicant submitted that this constituted a failure to take a mandatory relevant consideration into account. [74].

Dealing with the second ground, Jackson J held that “although it was open to the first respondent to take the depositions into account in deciding whether to proceed with the inquest, it was not a failure to take a mandatory relevant consideration into account for him not to do so”. [85]. With respect to the first ground of review, his Honour noted that the fact that “the applicant had urged upon the first respondent that consideration of the depositions would be a turning point or decisive factor”, combined with the fact that “the first respondent declined to consider them”, came close to “a refusal to accord a fair hearing by denying natural justice or unreasonableness as discussed in Li”. [86]. Ultimately, however, his Honour distinguished the present case from Li, and dismissed this ground of review. [87].

(3)–(4) Orders that the applicant attend to give evidence

The applicant argued that the account he gave to police only hours after the events resulting in the deceased’s death was so clear that there could be no good reason to order him to attend to give evidence about them. [89]. The applicant submitted that the first respondent failed to have regard to the “extent, timing and context of the applicant’s prior account” and “thereby failed to take into account a mandatory relevant consideration”. [95]. This ground was dismissed on the basis that (i) the conclusion was not supported by the subject matter, purpose and scope of the relevant provision of Coroners Act, and (ii) there was no evidence to suggest that these matters were not considered. [95].

Alternatively, the appellant argued that the decision was unreasonable in the Wednesbury sense because it would be futile for him to give evidence. [96]. This ground was also rejected. [97]–[100].

(5) Orders that various witnesses attend to give evidence

His Honour also rejected the applicant’s arguments in respect of orders that various witnesses attend to give evidence. [101]–[106], [107]–[110].

The application was therefore dismissed.

J English