IN THE CORONER'S COURT )
AT CANBERRA IN THE ) Case No. CD 196 of 1995 AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF THE DEATH OF
WARREN GEOFFREY I'ANSON
Findings of Chief Coroner R.J. Cahill
Delivered on 26 February 1999
Warren Geoffrey I'Anson died on Friday 17 November 1995 from gunshot wounds to the mid back region of his body as a result of the discharge of the police service firearm of Constable Christopher Michael Sheehan.
ORDERS IN RELATION TO THE SUPPRESSION OF NAMES OF WITNESSES AND EVIDENCE
On the basis of the material and the affidavits already provided, I make the following ruling:
"The question of whether or not a suppression order should be made, in this case it relates to the name of the witnesses, an order has been enforced on a temporary basis since the commencement of the inquest. It involved the balance of the right of the public to know and the normal situation that everything held in the court is publicly available and free to be published. That is in the public interest and it is also in the interests of the administration of justice as is mentioned in the relevant statute - the Evidence Act 1971 section 83, which provides:
"83. (1) Where it appears to a court that --
(a)the publication of evidence, given or intended to be given, in a proceeding before that court, is likely to prejudice the administration of justice;or
(b)in the interests of the administration of justice, it is desirable that the name of a party to, or a witness, or intended witness, in such a proceeding be notpublished,
the court may, at any time during or after the hearing of the proceeding, make an order --
(c)forbidding the publication of the evidence or a specified part of the evidence, or of a report of the evidence, either absolutely or subject to such conditions as the court specifies or for such period as is specified;or
(d)forbidding the publication of the name of such a party orwitness.
(2) ...."
Penalties for non-compliance with such an order are prescribed in section 84 of the Act.
"In this particular case it has been put before me that the witnesses concerned are professionals involved in therapeutic relationships with a number of people. Out of those therapeutic relationships the question of confidentiality and trust in that relationship is extremely important in them being able to conduct their professional duties and are able to best help the people who are in crisis and need their assistance. There are other matters raised in the affidavits that I do not wish to go into here that add to that particular question, at least in one of the cases in respect of the witness, to be known as, 'A'.
"Balancing all the matters I have mentioned, I am of the view that in this particular case the non-publication of the names of the workers involved, or any material that would actually identify their identity should be prohibited because I believe in this case the public interest and the interest in the administration of justice balances out in favour of that in the protection of their professional duties for the reasons I have indicated, and that material is well documented in the affidavits that have been submitted.
"In respect of the witnesses - 'A', 'J', 'K' and 'S' - their names are prohibited from publication, as is any material that would seek to identify them personally. 'The Clinic' and information about the services provided therein, as well as Warren I'Anson's attendance there is also suppressed. That does not mean there should be any restriction about reporting any evidence of what occurred, conversations etcetera, but it is simply that there could be a situation where publication of an address or something like that, but I make that order for more abundant caution, and that order remains in force until other order is made."
THE ROLE OF THE CORONER IN THE A.C.T.
The jurisdiction of the Coroner in the ACT is contained in section 12 of the Coroners Act 1956. Section 12 provides as follows:
"12. (1) A Coroner shall, subject to this Act, hold an inquest into the manner and cause of the death of a person who -
(a)iskilled;
(b)is founddrowned;
(c)dies a sudden death the cause of which isunknown;
(d)dies under suspicious or unusualcircumstances;
(e)dies during or within 72 hours after, or as a result of-
(i)an operation of a medical, surgical, dental or like nature;or
(ii)an invasive medical or diagnosticprocedure;
(f)dies, and a medical practitioner has not given a certificate as to the cause ofdeath;
(g)dies, not having been attended by a medical practitioner at any period within 3 months prior to his or herdeath;
(h)dies within a year and a day from the date of any accident where the cause of death is directly attributable to theaccident;
(i)dies-
(ii) while the subject of emergency procedures, or while subject to a mental health order, under the Mental Health (Treatment and Care) Act 1994;
(j)dies under circumstances that, in the opinion of the Attorney-General, requires that the cause of death and the circumstances of death should be more clearly and definitely ascertained;or
(k)dies incustody."
Subsections (2), (3) and (4) are not relevant to this inquest. Section 24 of the Coroners Act 1956 provides that:
"24. The Coroner holding an inquest into a death in custody shall include in a record of the proceedings of the inquest findings as to the quality of care, treatment and supervision of the deceased person which, in the opinion of the
Coroner, contributed to the cause of death."
"Death in custody" does not apply in this case, but I have treated this case as such in view of the questions raised as to the quality of care, treatment and supervision of Warren I'Anson and whether they may have borne any relationship to his ultimate demise.
Section 28 of the Coroners Act 1956 provides the power for the Coroner to order a post mortem examination. This step occurred in this case and a post mortem examination was conducted by Dr Jain in conjunction with one of the ACT forensic pathologists, Mr Paul Reedy.
Part V of the Coroners Act 1956 sets out the provisions relating to the conduct of inquests. Section 50 provides that inquests in the A.C.T. are held by the Coroner without a jury.
Thus the role of the Coroner is principally to make a full enquiry into the cause of death of the deceased person and examine, on oath, relevant witnesses.
Section 53 of the Act provides as follows:
"53. A Coroner may grant leave to a person -
(a)who has been summoned to give evidence at an inquest or inquiry;or
(b)who, in the opinion of the Coroner, has a sufficient interest in the subject matter of the inquest orinquiry,
to appear in person at the inquest or inquiry or to be represented by counsel or solicitor and to examine and cross-examine witnesses on matters relevant to the inquest or inquiry."
The High Court of Australia in Annetts and Anor v. McCann and Ors, emphasised the need for a Coroner to comply with the rules of natural justice in respect of the question of permitting representation of parties whose interests may be affected in the conduct of an inquest and, in particular, giving those parties the right to be heard and to make submissions in respect of the coronial inquiry. Those that sought leave to either appear personally, or for an individual, group or agency - and were granted that leave - in what became "Part I" of the inquest were:
Mr T. Buddin SC, instructed by Ms P. DeVeau, from the Office of the Department of Public Prosecutions, Counsel Assisting,
Mr K. Horler QC and Mr J. Pappas on behalf of Mr Brian I'Anson father of the deceased,
Mr T. Howe, of the Office of the Australian Government Solicitor, on behalf of the Commissioner of the Australian Federal Police,
Mr R. Bayliss, of the Office of the ACT Government Solicitor, on behalf of the ACT Health and Community Care Service and the Department of Health and Community Care,
Mr I. Bradfield on behalf of Sergeant Sly and Constables Sheehan, Walls, Muir and Finck, and
Ms H. McGregor, the Community Advocate.
The Australian Federal Police (AFP) were permitted representation as having an interest in the matter as the investigating agency appointed pursuant to section 49 of the Act on behalf of the Coroner, and also the agency against whom some criticisms had been levelled. Section 49 provides as follows:
"49. (1) A Coroner may, in writing, request the chief police officer for the assistance of a police officer in an investigation for the purpose of an inquest or inquiry.
(2) The chief police officer shall, as far as practicable, comply with a request under subsection (1)."
In this case, Detective Sergeant Dieter Tietz and Dectective Constable Danny Kindermann of the Australian Federal Police were vested with the delegation to investigate the death of Warren I'Anson and whether a person or persons may have been held culpable pursuant to section 59 of the Act.
Federal Agent (formerly Detective Sergeant) Brendan McDevitt of the Australian Federal Police was empowered, under my direction, to enquire into protocols, practices and procedural matters raised as a result of the death of Warren I'Anson and in "Part II" of the inquest.
Section 54 of the Act provides that:
"54. (1) A Coroner shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law.
(2) Where the procedure for taking any step in an inquest or inquiry is not prescribed in this Act or the law under which the step is to be taken, a Coroner may give directions with respect to the procedure to be followed as regards that step."
As the State Coroner of New South Wales, Mr Kevin Waller, states in his work "Coronial Law and Practice in NSW" a coronial proceeding has a particularly unique quality of being inquisitorial rather than accusatorial. The ordinary rules of procedure and evidence are eschewed in favour of a system which allows a Coroner to endeavour, by fair means, to discover the truth. Of course, the general application of law regarding to evidence and procedure is desirable. The recognised formula of examination, cross-examination and re- examination is a safe course to follow. Irrelevant material, comment in the guise of evidence, inexpert opinions, unduly prejudicial hearsay evidence and evidence the prejudicial effect of which outweighs its probative value (e.g. evidence of bad character) will not usually be permitted. The key advantage of the system as it stands is that the Coroner may take the advantage of hearsay evidence to explore a previously unexplored line of inquiry.
However, the Coroner, in exercising his function under section 59 of the Act as to whether any person should be committed for trial, will, in that regard, necessarily follow the strict rules of evidence in his consideration. Section 59 provides as follows:
"59. (1) If a Coroner is of opinion, having regard to all the evidence given at an inquest or inquiry, that the evidence is capable of satisfying a jury beyond reasonable doubt that a person has committed an indictable offence, the Coroner shall -
(a) ...
(b) ... (2) ... (3) ...
(4)When the person who has been arrested is brought before a Coroner, the Coroner shall proceed in the same manner as the Magistrates Court proceeds under the Bail Act 1992 or Part VI of the Magistrates Court Act 1930 when it is satisfied that the evidence before it is capable of satisfying a jury beyond reasonable doubt that an accused person has committed an indictable offence.
(5)The provisions of the Bail Act 1992 and Part VI of the Magistrates Court Act 1930 apply, mutatis mutandis, to and in relation to a person against whom a Coroner has found that the evidence before the Coroner is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictableoffence.
(6)In this section, "jury" means a reasonable jury properlyinstructed.
Although at this inquest the powers of the Coroner to go beyond the normal rules of evidence and procedure have been applied, my task pursuant to section 59 of the Act in determining
whether or not there is a case for committal against any person has to be performed pursuant to the rigid rules of evidence and procedure which apply in the hearing of any criminal indictable case against any person. That task necessarily involves looking at the material before me and applying the normal criminal jurisdiction rules of evidence and procedure to the material in making my decision.
Section 56 of the Coroners Act 1956 provides as follows:
"56. (1) A Coroner holding an inquest shall find, if possible -
(a)the identity of thedeceased;
(b)how, when and where the deathoccurred;
(c)the cause ofdeath;
(d)the identity of any person who contributed to the death;and
(e)in the case of the suspected death of a person -- that the person hasdied.
(2) ....
(3)At the conclusion of an inquest or inquiry, the Coroner shall record his or her findings in writing.
(4)A Coroner may comment on any matter connected with the death or fire, including public health or safety or the administration ofjustice."
Sub-section (2) is not relevant to this inquest.
In the context of sub-section (4) "Part II" of the inquest was conducted. Finally, section 58 of the Coroners Act 1956 provides as follows:
"58. (1) A Coroner may report to the Attorney-General on an inquest or inquiry which the Coroner has held.
(2) A Coroner may make recommendations to the Attorney-General on any matter connected with an inquest or inquiry, including matters relating to public health or safety or the administration of justice."
THE DEATH OF WARREN I'ANSON
The circumstances surrounding the demise of Warren I'Anson may best be summarised by portions of the oral submission relating to the death presented by Counsel Assisting - Mr Terry Buddin SC:
"Warren I'Anson led something of a troubled life. There was a history of admissions to hospital and other places where care was administered. He was a long term sufferer of schizophrenia, which - in the words of Crisis Team member witness 'K' - 'was exacerbated by
frequent use of drugs and alcohol', and the evidence reveals a pattern of deterioration in his condition and behaviour in the weeks and days preceding his death.
"There were a number of factors in addition to his pre-existing circumstances. He suffered grief over the deaths of both his wife and his best friend; obviously a major precipitating factor. He had expressed concerns in relation to a perceived inadequacy of the autopsy process relating to his wife Susan's death, because there was no toxicological report. He had concerns relating to the possible contraction of a life-threatening illness, about which he learned only two days before his death.
"He had concerns about his role both as a client and support worker for the Mental Health Foundation. He also expressed concern about conflicts, as he perceived them, between the Mental Health Foundation and the ACT Mental Health Services. He also exhibited unusual or morbid patterns of behaviour during the period prior to his death.
"There was a reference to his jumping off the high tower at the local swimming pool that was discussed with a third party as being 'practice'. There were a number of discussions with people about the futility of life, and unusually agressive behaviour. There was the visit to the cemetery on the morning of his death and the unusual encounter with the worker there.
Together with a certain degree of profligacy in relation to money and possessions. This particularly unusual behaviour escalated as the time of his death approached and those nearest and dearest to him began to have increasing concerns.
"Warren's behaviour in the hours preceding his death revealed that he was highly disturbed and/or suicidal. He refused entreaties by his father, by Witness 'K' , by police, and by a neighbour who knew him well, to voluntarily come out of his unit and go to hospital. The evidence suggests, and it is agreed on all sides, that the police at this stage acted appropriately, with patience and understanding. There was also the question of the bizarre apparel that he was wearing, and the frightening behaviour - when he had possession of the knife - towards both Witness 'K' and Constable Walls. The neighbour was also frightened for his safety. There were concerns that he was intoxicated by drugs and alcohol, and there were concerns that he would harm himself, or others, by committing suicide - throwing himself from the balcony, using the knife, ingesting drugs, or some other undefined way. The fact remains - that not all information was available to those outside.
"It was in those circumstances that the Mental Health Crisis Service formed the view that the time had been reached to take Warren I'Anson to hospital for assessment; a view shared by those who knew him best. They informed the police that they were not leaving the area without him because - in the words of Witness 'A' - 'they could not just walk away from the situation'. The police considered a number of options but believed that time was of the essence, and acting on advice from the Mental Health Crisis Team - that Warren would commit suicide - decided to effect forceful entry. The gist of their evidence was that 'they were damned if they did take action and tragedy occurred, and damned if they didn't take action and tragedy occurred'.
"Two pieces of vital information were missing from the considerations by the decision- makers that forcible entry should be effected. Firstly, that Warren had said that as he did not want police blazing their guns through the door, he would put a mattress against the door, and secondly, Warren had said that he would be shot. The recipient of that information inferred that it would be at the hands of the police, in circumstances he described as 'committing