QUINLAN v. DEPUTY STATE CORONER [2000] NSWSC 434

New South Wales Supreme Court

CITATION : QUINLAN v. DEPUTY STATE CORONER [2000] NSWSC 434 CURRENT JURISDICTION: COMMON LAW FILE NUMBER(S) : SC 10749/99 HEARING DATE(S) : 18/05/2000 JUDGMENT DATE : 25 May 2000

PARTIES : Pamela May Quinlan - Plaintiff Deputy State Coroner - Defendant JUDGMENT OF : Bryson J at 1

LOWER COURT CORONERS COURT JURISDICTION : LOWER COURT 1052/98 FILE NUMBER(S) : LOWER COURT Ms Jan Stevenson JUDICIAL OFFICER :

COUNSEL : Plaintiff in Person P Lakatos - Attorney-General SOLICITORS : Crown Solicitor - Attorney-General CATCHWORDS : CORONERS - death of prison inmate - application to reopen inquest - determination that death caused by multiple drug toxicity - application that further evidence from other prisoner be taken - whether Coroner performed duties under Act. LEGISLATION CITED : Coroners Act 1980 ss 4D, 13A, 22(1), 47 DECISION : Proceedings dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BRYSON J.

THURSDAY 25 MAY 2000

10749/99 PAMELA MAY QUINLAN v. DEPUTY STATE CORONER

JUDGMENT 1 HIS HONOUR: These proceedings relate to an Inquest held at Westmead Coroner's Court by the Deputy State Coroner, Ms Jan Stevenson. After conducting the Inquest and taking evidence on 22, 23 and 24 February 1999 and on 1 April 1999, the Coroner after reviewing the facts found that Craig Leslie Conway died on 2 January 1997 at Goulburn Correctional Centre of multiple drug toxicity. These findings fulfilled the Coroner's duties under subs 22(1) of the Coroners Act 1980; the main subject of an Inquest is the manner and cause of death, and an Inquest is not an occasion for investigating offences or untoward behaviour or events which do not bear on the manner and cause of death. 2 Inquests relating to deaths of persons who die in lawful custody are to be held before the State Coroner or a Deputy State Coroner: see s 13A. The functions of the State Coroner, stated in s 4D and exercised in this instance by Ms Stevenson, include: (b) to ensure that all deaths … concerning which a Coroner has jurisdiction to hold an Inquest or inquiry are properly investigated, … 3 Proceedings in the Supreme Court were commenced by a Summons filed on 30 March 1999 and returnable on 19 April 1999. The proceedings had not been considered by the Court by 1 April 1999 when the Coroner brought the Inquest to a conclusion. The nature of the claims in the Summons were: (1) Certiorari to set aside a decision made in the course of the Inquest that [a named prisoner] should not be examined at the Inquest. (2) Mandamus directing the Coroner to perform the duty of properly investigating the death by requiring the examination of [the prisoner] at the Inquest. (3) Mandamus to the same effect as claim (2) but referring to the power in s 31 to examine persons on oath. (4) Mandamus directing the Coroner to exercise the discretion under s 31A to grant to the plaintiff leave to have [the prisoner] examined. 4 The plaintiff Mrs Quinlan had legal representation by counsel at the Inquest and when the Supreme Court proceedings were commenced. Solicitors prepared and filed affidavits on her behalf. She was unrepresented at the hearing before me. In her submissions she showed her profound emotional involvement in the events, and made observations on a number of matters which have seemed to her to be very unsatisfactory, but which did not bear closely on the claims in the Summons. I decided to intervene to some degree, looked at the affidavits which have been filed and treated them as having been put in evidence by her. She tendered some photographs including some which appear to be enlargements of photographs which were in evidence before the Coroner. The claims made in the Summons for relief in the nature of prerogative writs did not appear to me to be well considered, but I was of the view that having regard to the terms of those claims I should treat the application as made under subs 47(2) of the Coroners Act. By proceeding in this way, which the claims in the Summons do not literally authorise, I had in view the provisions of s 63 of the Supreme Court Act 1970 and the duty to grant remedies so that as far as possible all matters in controversy may be completely and finally determined. 5 Subsection 47(2) is in these terms: Where an inquest or inquiry has been, or purports to have been, held and the Supreme Court, upon an application made by, or under the authority of, the Minister or by any other person is satisfied that, by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, discovery of new facts or evidence, or otherwise, it is necessary or desirable in the interests of justice that the inquest or inquiry be quashed and a fresh inquest or inquiry be held, the Supreme Court may order that the first inquest or inquiry be quashed and that instead thereof a fresh inquest or inquiry be held. 6 On the facts before me there is nothing to consider relating to fraud, rejection of evidence, irregularity of proceedings or discovery of new facts or evidence, but the plaintiff's claim in substance is about alleged insufficiency of inquiry, and also about general considerations which raise for determination whether it is necessary or desirable in the interests of justice that the Inquest be quashed and a fresh Inquest be held. I will determine the proceedings on those bases. 7 The Coroner filed a submitting appearance, did not take any active part in the litigation and was not represented at the hearing. The Attorney-General was represented by counsel at the hearing. The Attorney-General was entitled to be heard under subs 47(2B). 8 In evidence before the Coroner was a final autopsy report by Dr P. Botterill, a pathologist of the New South Wales Institute of Forensic Medicine. Dr Botterill also gave oral evidence at the Inquest. With his report he produced a neuropathology report by Dr Raisanen, a neuropathologist also of the New South Wales Institute of Forensic Medicine, a virology report by the Institute of Clinical Pathology and Medical Research which negatived HIV serology, and a report of an analyst of the Division of Analytic Laboratories of the Western Sydney Area Health Service with results of screening tests. The analytical report showed the presence of methadone in the deceased's blood within the toxic range and above the reported fatal range, the presence of dothiepin in concentration below the toxic blood range and reported fatal range, diazepam below the toxic blood range and the reported fatal range and nordiazepan at low concentration. Dr Botterill was given a history, including an alleged history of recent assault and alleged ingestion of a number of tablets before and after the evening meal on 1 January 1997. His examination and investigations appear to me to have been very comprehensive. In Dr Botterill's opinion the direct cause of death, the condition directly leading to death, was "multiple drug (methadone, dothiepin, diazepam) toxicity." Dr Botterill did not nominate any antecedent causes. 9 Dr Botterill's observations which I identify as possible signs of recent injury were: · extensive reddish discolouration of the tip and paranostril portions of the nose; · a healing abrasion below the left eye with some bruising in the underlying soft tissue; · an incised wound and bruising to the right hand; · bruising to the proximal left forearm; · discolouration of the left knee; · recent abrasion to the right knee with bruising in underlying soft tissue; · bruising over the left thigh. 10 Dr Botterill did not report, and oral evidence including cross-examination did not establish, any sign of any injury to the brain or head which could possibly be a cause of death; no cause of death other than that which he reported was shown to be possible. 11 Mrs Quinlan contended that there should be further investigation whether Craig Conway's death was caused by his being bashed by the other occupant of his cell, Lawrie Grainger, or by drugs being forcibly administered to him or injected by Lawrie Grainger or some other person. She put this position forcefully in her oral submissions before me and in large part it represents lines of inquiry which were urged on the Coroner. 12 There is no line of inquiry or information referred to at any point in the materials shown to me which could support the view that there ought to be investigation or further investigation of the possibility that Craig Conway's death was caused by forced injection or by forced ingestion of drugs. The suggestion that he was bashed was based, in so far as it had a basis, on a statement of another prisoner which was shown to the Coroner and treated by the Coroner in her reasons as part of the material under consideration. Counsel representing Mrs Quinlan distinctly asked that the Coroner should require the other prisoner to attend to give oral evidence. The Coroner addressed this question carefully, reviewed the relevant considerations, and decided not to do so, for reasons which she stated on 24 February 1999. The applications based on certiorari and mandamus cannot succeed, in my opinion, because the Coroner actually addressed the question whether she should require the oral examination of the other prisoner as a step in the Inquest or as a step in a proper investigation, and decided not to do so, on grounds which were relevant. There was no refusal or failure or constructive failure to exercise these powers. Having regard to s 47, however, this Court's power to intervene is not restricted to grounds on which certiorari or mandamus orders might be made. 13 The record of interview of the other prisoner shown to the Coroner is a transcript of an electronically recorded interview which took place on 13 November 1997 between Detective Senior Constable Mat Packham and the other prisoner in the presence of Detective Senior Constable Bruce Shields. The record is 22 pages long, and the prisoner spoke in prison argot which is not always easy to follow. He told Detective Senior Constable Packham to the effect that at some date which he did not state when he and Lawrie Grainger were both in prison at Lithgow, Grainger told him to the effect that Conway stole physeptone (which is methadone) which Grainger had hidden in their cell. Grainger told him that Conway was asleep and would not answer him when Grainger found that there were six items missing; so he pulled Conway out of bed and bashed him. During the night he caught Conway up by the light (meaning the fluorescent light in the cell) where drugs were hidden, jumped up and grabbed Conway, at which time the fluorescent tube was pulled out. He again bashed Conway and threw him back onto the bed unconscious. Grainger said that he bashed Conway's head onto the concrete floor. Grainger said that there were no bruises on Grainger because Conway was "on the nod", meaning asleep. Grainger told the police the story that the fluorescent tube must have been broken by Conway when he fell out of his bed twice; but this was a false story. There was much more material in the statement about the conduct of Grainger and Conway, and about how the drugs were said to have been brought into the prison and into the cell. 14 The Coroner read a statement made by Grainger and heard the evidence of Grainger, who gave a completely different account of the events and denied that there had been an assault. Grainger said that Conway had twice fallen out of the top bunk. According to Grainger, Conway took many pills at about 2.00pm on 1 January and more at about 8.00pm. She also heard the evidence of a prisoner in the next cell, which did not bear out the happening of events such as the other prisoner claimed Grainger had admitted, although of course the prisoner in the next cell could not give evidence which was conclusive. The Coroner also heard the evidence of prison officers who attended during the night when Grainger reported that the light was broken, and in the morning when Grainger reported that Conway was unconscious. At no point was there any other material which tended to show that Conway's head had been beaten against the concrete, or that he had been bashed, or that any event of that kind had caused or contributed to his death or had happened at all. 15 The signs of injury found on the deceased at the post-mortem examination make it unlikely that there were any such events. If there were signs of injury which were not observed at the post-mortem examination and reported on by Dr Botterill, there were a number of prison officers and other witnesses who were in a position to observe them. On a reading of the whole of the record of interview the other prisoner's statement is not one in which confidence can be placed, and it is significant that he was serving a very long term of imprisonment after conviction for murder, and that without confirmation it would be difficult to accept his credibility. Where objective confirmation could be looked for, most notably in Dr Botterill's evidence, there is none, and the evidence is inconsistent with head injury or other injury being a cause of death. 16 In the circumstances I am of the view that there are no substantial grounds for regarding the Coroner's decision not to require the other prisoner to give oral evidence as not a proper decision on the question, or as a decision which ought to be reopened or reconsidered. In terms of subs 47(2) it should not be concluded that there was insufficiency of inquiry. There are not otherwise grounds on which it is necessary or desirable in the interests of justice that a fresh Inquest be held. Even if it were established that Grainger had bashed Conway, and it is very unlikely that that could be established, the Coroner's conclusions on the manner and cause of death could not reasonably be expected to be varied. 17 For these reasons the proceedings should be dismissed.