In this recent matter, the Supreme Court considered the scope of the principle that a prosecutorial decision not to prosecute is not to be susceptible to judicial review. The specific issue before his Honour, Justice McMurdo, was whether a coroner may investigate the reasoning behind a prosecutor’s decision not to prosecute, or whether this amounts to an act outside the scope of their powers under the Coroner’s Act 2003 (Qld) (“CA”). .
Following an investigation into the death of a tourist by Fair & Safe Work Qld (“the agency”), the respondent, the Northern Coroner, began its own investigation into both this death and “the adequacy of the [previous] investigation.” . During this investigation the respondent directed an employee of the agency to answer questions regarding the agency’s decision not to prosecute the tourism operator involved. This line of questioning was objected to on the grounds that it was beyond the scope of permitted subjects that coroners may investigate or comment upon. In particular, the agency relied upon s 46(3) of the CA which prohibits coroners from making a statement that a person is or may be guilty or civilly liable for something and the “well established principle that a decision whether or not to prosecute is not susceptible to judicial review.” . The inquest was stayed subject to these proceedings determining the scope of the respondent’s power.
Under the Coroner’s Act, coroners have very extensive investigative powers,  – in addition to a duty to determine, where possible, details surrounding the suspected death, see s 45. Pursuant to s 46(1) corners may also, where appropriate, “comment on anything connected with a death investigated ... that relates to ... the administration of justice; or ways to prevent deaths from happening in similar circumstances in the future.” . In determining whether a coroner may investigate the reasoning of a decision not to prosecute, specifically whether this was a matter which fell within “the subject matter of ‘the administration of justice’ upon which a coroner is expressly authorised to comment” , McMurdo J considered the decision of the Supreme Court in Doomadgee v Clemens. In that case, the Court concluded that the coroner’s scope of inquiry, pursuant to s 45, was extensive, , and included the power to expose some “failing deficiency or wrong” connected to the death under investigation, which is in the public interest. -.
Applying this reasoning to the instant case, his Honour concluded that the agency’s decision not to prosecute was “of a kind which relates to the administration of justice.” . Consequently, subject to two considerations – the general principle that a decision whether to prosecute is not subject to judicial review; and the prohibition of s 46(3),  – it was an issue upon which a coroner could comment, see s 46(1), and thus could investigate. Addressing the first consideration, his Honour concluded that given the investigative, rather than adjudicative function of a coroner, the purposes of this principle, namely to disassociate the courts from the (executive) process by which cases come before them, was not applicable such that there was no general prohibition preventing coroners from investigating or commenting upon this type of decision.  In then considering the express limitations provided by s 46(3) his Honour concluded that though in the instant matter it would be difficult for the respondent to comment upon the “agency’s decision not to prosecute if [the decision] was made after an assessment by the agency that there was a case that could be prosecuted”, it was “conceivable” that an inquiry into this subject might result in a comment which would not offend s 43(6) and was ‘appropriate’ pursuant to s 46(1). -. Given the conclusion that this subject was not necessarily irrelevant to an appropriate comment, the Court did not intervene and the application was refused.