Taing & Nuon v The Territory Coroner and Attorney-General for the

Northern Territory [2011] NTSC 58

 

PARTIES:                                         TAING, Sivhong

 

                                                         AND

 

                                                         NUON, Simach       

 

                                                         v

 

                                                         THE TERRITORY CORONER

 

                                                         AND    

 

                                                         ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING

                                                         ORIGINAL JURISDICTION

 

FILE NO:                                          No. 28 of 2010 (21007942)

 

DELIVERED:                                   9 August 2011

 

HEARING DATES:                           4 March 2011

 

JUDGMENT OF:                              BLOKLAND J

 

CATCHWORDS:

 

CORONERS ACT (NT) - Plaintiff seeks an order that this court order an inquest be held – both parties accept the deaths of the deceased persons are reportable deaths over which the coroner has jurisdiction to investigate – question requires consideration of whether an inquest would raise a real possibility of determining the cause of death or enable further significant finding be made– if holding an inquest would be futile no order should be made – application dismissed

 

Clancy v West [1996] 2 VR 647; Veitch v The State Coroner [2008] WA SC 187; Bilboa v Faquar (1974) 1 NSWLR 377; followed

 

Bhattacharya v Hamilton [2000] NSW SC 102; Domaszewicz v State Coroner (2004) 11 VR 237; Doomadgee v Clements [2005] 2 Qd R 352; Herron v Attorney General for New South Wales 8 NSWLR 60; Wuridjal v Northern Territory Coroner (2001) 165 FLR 317; referred to

 

Coroners Act (NT) s 3, s 4A, s 4A(d). s 12, s 12(1), s 14(1), s 14(2), s 15(1),            s 15(1)A, s 16, s 16(3), s 23(3), s 34, s 44

Victim of Crimes Assistance Act (NT) s 48(1)(v)

Births, Deaths & Marriages Registration Act (NT)

Births, Deaths and Marriages Regulations (NT) r 5

 

REPRESENTATION:

 

Counsel:

    Plaintiffs:                                     T S Lee

    Intervener:                                    Ms Brownhill

 

Solicitors:

    Plaintiffs:                                     T S Lee

    Defendant:                                    Solicitor for the Northern Territory

 

Judgment category classification:    B

Judgment ID Number:                       BLO1109

Number of pages:                             38


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Taing and Nuon v The Territory Coroner and Attorney General for the Northern Territory [2011] NTSC 58

No. 28 of 2010 (21007942)

 

 

                                                     BETWEEN:

 

                                                     SIVHONG TAING

                                                         First Plaintiff

 

                                                     AND

 

                                                     SIMACH NUON

                                                         Second Plaintiff

 

                                                     AND:

 

                                                     THE TERRITORY CORONER

                                                         First Defendant

 

                                                     AND

 

ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY

    Intervener

 

CORAM:     BLOKLAND J

 

REASONS FOR JUDGMENT

 

(Delivered 9 August 2011)

Introduction

[1]       By originating motion and summons Sivhong Taing and Simach Nuon (the plaintiffs) seek an order under s 16(3) Coroners Act (NT)[1] that this Court order an inquest be held into the deaths of their respective husbands, Xinh Yong Ang and Hak Tong (the deceased persons).  As is the practice, the Territory Coroner (the First Defendant) has taken no active part in these proceedings.  Counsel for the Attorney General as Intervener has placed evidence and submissions before the Court.

[2]       It is common ground that between 12 and 18 November 2007 the deceased persons died at Dugong Creek Camp 2, King Ash Bay, Northern Territory.[2]  Their deaths were reported to the Territory Coroner on or about 21 November 2007.  Both deceased persons were self employed fishermen/crabbers who lived at the remote Dugong Creek camp for most of the year.  Their remains were found at the camp.  The first persons who attended at the scene observed the burnt wreckage of the camp and a vessel beached in close proximity to the camp.[3]  Their deaths were initially treated as suspicious by police and investigated accordingly.[4]  The investigation was exhaustive as is evident from the material placed before this Court.  The Internal Memorandum by Senior Constable Bradley Currie provides a helpful summary of the steps taken by police and why, from his perspective, it was concluded the cause of the fire and deaths may never be known.[5]

[3]       Both parties readily accept the deaths of the deceased persons are “reportable deaths” within the meaning of the Coroners Act (NT).  A “reportable death”[6] means a death referred to in s 12(1) Coroners Act (NT).  Relevantly, s 12(1) Coroners Act (NT) provides:

reportable death means:

(a)     a death where:

(ii)     the death occurred in the Territory;

being a death - …

(iv)       that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury; or …

(ix)     of a person whose identity is unknown.

[4]       On 21 November 2007, at the direction of the Territory Coroner, autopsies were performed on the remains of both deceased persons by Dr Terence John Sinton.[7]  Between November 2007 and October 2008, the deaths were investigated by Northern Territory police and on 24 January 2008 a brief of evidence was prepared and submitted to the Territory Coroner.  The contents of that brief are before this Court.[8]  It comprises a significant amount of evidential material that I have reviewed during the course of these proceedings:

A.           Internal Memorandum from Detective Senior Constable Bradley Currie to the Senior Major Crime Section dated 13 October 2008;

B.           PROMIS Case Management Report printed on 22 April 2008;

C.           Autopsy report in relation to Xinh Yong Ang prepared by Dr Terrence John Sinton dated 10 March 2008;

D.           Autopsy report in relation to Hak Tong prepared by Dr Terrence John Sinton dated 10 March 2008;

E.           List of civilian witnesses providing evidence to NT Police and summary of witness evidence.

F.            Statements made to Northern Territory Police as follows:

(i)                statutory declaration (handwritten) of Mr Bill Adams dated 5 December 2007;

(ii)              statutory declaration of Bill Adams dated 23 November 2007;

(iii)            statutory declaration (handwritten) of Kim Leang Banh dated 19 November 2007;

(iv)             statutory declaration (handwritten) of Terrance Neil Bradley dated 6 December 2007;

(v)               statutory declaration (handwritten) of Tien Duong dated 20 November 2007;

(vi)             statutory declaration (handwritten) of Ken Hurkett dated 5 December 2007;

(vii)           statutory declaration (handwritten) of Johnny Johnson dated 6 December 2007;

(viii)         statutory declaration (handwritten) of Rodney Johnson dated 5 December 2007;

(ix)             unsworn statutory declaration of Rodney Johnson dated 19 November 2007;

(x)               statutory declaration (handwritten) of Steve Johnson dated 5 December 2007;

(xi)             statement of Simach Nuon dated 27 August 2008;

(xii)           statutory declaration of Robert Pyro dated 6 December 2007;

(xiii)         unsworn statutory declaration of Gregory John Quayle dated 20 November 2007;

(xiv)          statutory declaration of Johnathan Sartour dated 20 February 2008;

(xv)            unsworn statutory declaration of Barbra Shannon dated 20 November 2007;

(xvi)          statutory declaration of Sivhong Taing dated 19 November 2007;

(xvii)        statutory declaration of Sivhong Taing dated 17 July 2008;

(xviii)      statutory declaration of Benjamin Tooki dated 1 October 2008;

(xix)          statutory declaration (handwritten) of Tran Van Hien dated 20 November 2007;

(xx)            statutory declaration of Veasna Um dated 3 December 2007;

(xxi)          statutory declaration (handwritten) of Roy James Wright (Junior) dated 6 December 2007;

(xxii)        statutory declaration (handwritten) of Roy James Wright (Senior) dated 6 December 2007;

(xxiii)      statutory declaration of Isobel Anne Cummins dated 21 April 2008;

(xxiv)       statutory declaration of Bradley Currie dated 5 August 2008;

(xxv)         statutory declaration of Megan Duncan dated 18 June 2008;

(xxvi)       statutory declaration of Denise Susanne Grover dated 20 May 2008;

(xxvii)     additional statutory declaration of Denise Susanne Grover dated 23 July 2008;

(xxviii)   evidentiary certificate of Denise Susanne Grover dated 23 July 2008;

(xxix)       statutory declaration of Jason John Guy dated 23 April 2008;

(xxx)         statutory declaration of Marrianne Irwin dated 20 May 2008;

(xxxi)       statutory declaration of Daniel Kowalewycz dated 17 June 2008;

(xxxii)     statutory declaration of Christina O’Connor dated 22 July 2008;

(xxxiii)   statutory declaration of Scott Alan Pollock dated 1 June 2008;

(xxxiv)    statutory declaration of Gino Mario Rob dated 11 April 2008;

(xxxv)      statutory declaration of Wade Rogers dated 5 August 2008;

(xxxvi)    statutory declaration of Timothy Bruce Sandry dated 4 July 2008; and

(xxxvii)  unsworn statutory declaration of Luke Shilton dated 26 May 2008;

G.           Photographs taken by Timothy Bruce Sandry at Camp No. 2, Dugong Creek, King Ash Bay, on 19 November 2007;

H.           Structure Fire Investigation Report prepared by Northern Territory Fire & Rescue Service Station Officer Peter van Boxtel dated 25 January 2008;

I.             True copies of miscellaneous documents comprising:

i.                   letter from Sam Cleland, Senior Meteorologist, Bureau of Meteorology to Detective Sergeant Isobel Cummins, Major Crimes Unit, providing ‘Expert opinion of likelihood of lightning within the broad vicinity of King Ash Bay/McArthur River, overnight Monday/Tuesday 12/13 November 2007’ dated 11 January 2008;

ii.                 exchange of e-mail messages ‘RE: Sir Edward Pellew Island thunderstorm information [SEC=UNCLASSIFIED]’ between Peter van Boxtel and James Turnbull of Bureau of Meteorology dated 29 November 2007;

iii.               Centre Island, Northern Territory, November 2007 Daily Weather Observations.

J.            True copy of Statement of Haley Jane Brown dated 20 March 2008 and enclosing ‘Report on the Examination of Items in the Case Involving NT Police FSS 072567’ dated 20 March 2007.

K.           True copies of documents establishing proof of identity of the deceased men;

i.                   Certificate of Australian Citizenship for Hak Tong;

ii.                 Northern Territory Licence to Drive for Hak Tong;

iii.               Australian Passport personal details and photograph for Xinh Yong Ang;

L.      Summary of mud crab licences approved for the King Ash Bay area in November 2007.

[5]       Further, before this Court is correspondence between the Deputy Coroner and other less significant yet potential witnesses,[9] as well as a statement of Peter Russell,[10] findings made by the Deputy Coroner and her reasons for her decision not to hold an inquest into the deaths;[11] correspondence between NT WorkSafe and the Office of the Territory Coroner (7 April 2009);[12] booklets of a series of colour photographs;[13] the plaintiffs’ affidavits setting out their own circumstances and the reasons they seek an order from this Court that an inquest be held into the deaths of their husbands.

[6]       The bodies of both deceased persons were found unexpectedly at their camp.  Both bodies were extensively and severely burnt.  Because of the wide-spread charring and extensive loss of bony and soft tissue, Dr Sinton considered the damage was sufficiently severe to prevent the identification of any existing or naturally occurring disease which might have caused or contributed to the deaths.  Similarly, because there was no evidence of any recent traumatic skeletal damage, such damage could not be entirely excluded given the loss of parts of both skeletons and the distorting damage to both remaining skeletons.  Dr Sinton concluded that although the bodies had been severely burnt, it was not clear that the burns had necessarily been the cause of death.  In the absence of any scientific support for an alternative, Dr Sinton found the cause of death remained undetermined at the time of the autopsies.[14]

[7]       On 17 February 2010, following an investigation into the deaths under          s 14(2) Coroners Act (NT), a Deputy Coroner appointed under the Act[15] made findings into the deceased deaths under s 34 of Coroners Act(NT) and decided, pursuant to s 15 Coroners Act (NT) not to hold an inquest into their deaths.[16]

[8]       The learned Deputy Coroner found she was unable to determine the cause of the fire or the cause of death of the deceased persons.  She also noted NT Work Safe did not conduct an investigation under the Work Health Act (NT).  NT Work Safe did however prepare and publish safety alerts pertaining to portable fuel containers to remind participants in the commercial fishing industry and service station employees of their obligations under the Dangerous Goods Act and Workplace Health and Safety Act.[17] The learned Deputy Coroner made formal findings on the identity of both deceased persons and the place and approximate time of death.  She made a formal finding that the cause of death in respect of both deceased persons was undetermined. 

Grounds on which the relief is sought

[9]       The plaintiffs’ affidavits set out their personal circumstances and the reasons they seek an order that an inquest be held.  These reflect some of the issues in the “Plaintiffs’ Points of Claim”.

[10]     The plaintiff Sivhong Taing has outlined her financial and emotional difficulties since the death of her husband.  This includes difficulty supporting her children.  She states she has been emotionally traumatised by the Coroner’s decision not to hold an inquest.  Further, she says the post mortem examination by Dr Sinton concluding the cause of death “undetermined” does not give her “closure”.  She is left with “deep and lasting grief”.[18] 

[11]     She tells the Court the failure to make a finding as to cause of death and the formal finding that the cause of death is “undetermined” has led to her being assessed as not eligible for financial assistance by the Crimes Victims Services Unit. 

[12]     The level of deep grief and consequent struggle on the part of both plaintiffs is understood, however that by itself is not determinative of whether to order an inquest.  I agree there is a need for next of kin to be satisfied that all proper inquiries have been undertaken to determine the cause of death, however there needs to be some real possibility shown that holding an inquest will achieve this objective.  Regrettably in some circumstances this is not possible to achieve.  The deep anxiety and suspicions held by the plaintiffs are not a substitute for evidence. 

[13]     Similarly, the ineligibility for financial assistance under the Victims of Crime Assistance Act (NT) cannot by itself be determinative on whether an inquest should be held.  Under the Victims of Crime Assistance Act (NT) the Assessor has found there is no evidence to support the claim for a compensable violent act.  The Assessor therefore concluded the plaintiff Sivhong Taing, (applicant in those proceedings), was not an eligible family victim as a violent act could not be established.  The Victims of Crime Assistance Act (NT) has its own mechanism for appeal under s 48(1)(v) of that Act.  It may be that further evidence, if it were available, would assist Sivhong Taing’s application but the plaintiffs have not pointed to further evidence or how further evidence would be revealed by holding an inquest.  In general, assistance to pursue a private claim is not a reason to order a coronial inquest.[19]

[14]     Both plaintiffs seek to agitate that the deaths were in fact suspicious and the result of violent acts or “foul play”.  They submit an inquest would uncover the relevant facts in support of such a conclusion. 

[15]     Sivhong Taing says she was with her late husband at the campsite on Thursday 8 November 2007 until 12 November 2007.  At that time her late husband told her that two male Caucasians were going to give him trouble about placement of crab pots resulting in infringement on her late husband’s crabbing territory.  He told her the two male Caucasians had been in trouble before with police for not having valid licences and for catching undersized crab.  She says her late husband was worried he would be killed by them due to past altercations.  He asked her to let police know about them in case of trouble.[20] 

[16]     Sivhong Taing says her late husband also told her he had accidentally opened another person’s blue esky that was similar to his own; that each Monday morning her late husband would pick up their blue esky containing food stuffs she had packed for him; that a truck driver known as Tien Van Duong would deliver the blue esky with other eskies owned by other crabbers.  Mr Duong also transported the mud crabs back to Darwin.  Sivhong Taing says when her husband accidentally opened the wrong esky he noticed it was full of marijuana.  When he closed the esky and picked up the correct esky, he realised other crabbers had noticed what was inside.  He was worried about the incident and did not want to cause any trouble. 

[17]     When she arrived at the camp site after the death of her husband, Sivhong Taing noticed the living areas of the campsite were burnt to the ground save for an empty mud crab crate in the water.  She also noticed the neighbouring vacant campsite shade cloth that divided her late husband’s campsite, (two metres away), was not burnt.  She noticed that only her husband’s boat was burnt and not the deceased Hak Tong’s boat.  Hak Tong’s boat was released from the jetty and stranded and bogged during low tide.  She said both boats should have been fastened to the jetty.  She said when she was at the campsite on 18 November 2010 two local persons “Greg” and his wife “Dianne” told her they had heard a loud explosion on Monday 12 November 2007 at about 7:00pm or 8:00pm.[21]

[18]     The plaintiff Simach Nuon has experienced similar difficulties to those of Sivhong Taing.[22]  She says the death of the deceased persons was the result of “foul play” as she knew her late husband was very careful in relation to fire; he did not smoke or drink, even socially; she finds it surprising neither of the deceased fled the scene and both boats were found adrift, damaged and sunk.[23]  She says during her visit to the burnt campsite in November 2007 a police officer gave her an ivory pendant; he told her he had found the pendant where the body had laid; that she and her husband had almost identical pendants; that he had black ivory and hers was creamy coloured ivory set in gold with identical 18 carat gold chains.  He would take the gold chain off when he went to sleep.  She had previously asked him not to do so because she believed the pendant gave good luck.  It had been blessed by a monk in Cambodia.  She said the chain disturbed her husband from his sleep and he would take it off at night. 

[19]     During her visit to the campsite she said she did not notice any fuel container that contained petrol or diesel.  She said there must have been a lot of petrol or diesel used to cause a fire having such a significant impact.  She said she is certain someone killed the deceased as there is no explanation on why the pendant, (which was set in gold) was not burnt while the gold chain along with parts of the campsite were totally burnt.[24] 

[20]     Simach Nuon referred to the statement provided to police from Ben Tooki.[25]  In that statement Mr Tooki gives an account of his whereabouts and that he had received burns to his legs from fuel when he was on a trip to Borroloola.  Although he was headed for King Ash Bay he ended up at the Clinic at Borroloola for treatment of the burns and then left.  He says while at King Ash Bay he did not go out fishing but went down to the water a couple of times and stayed most of the time at the camp.  He did not want to go to the clinic as he did not want to ruin the fishing trip for everyone.  He was told about the incident of two persons being burnt to death.  He said he did not venture past the campsite and did not know of the fishing camps in the area because it was his first visit.  He refers to one friend who he knew as “Redneck” at an address of “Andrew Bakers brothers place”.  Simach Nuon suggests selective memory on the part of Mr Tooki.[26] 

[21]     Simach Nuon also refers to the statement of Veasna Um[27] as she suggests it explains the likely cause of death.[28]  Veasna Um states that he had worked with the deceased persons; that he would camp with them in the same new camp; that each Monday they would go into King Ash Bay to bring in crab and pick up supplies; they would obtain fuel at that time and fill up about eight 20 litre containers with fuel. 

[22]     He states that during one of their last trips into King Ash Bay the deceased Hak Tong told him that they had to hide some alcohol at their camp.  He told him this was necessary as a result of trouble they had been having at the camp.  The deceased Hak Tong told Veasna Um that Rodney Johnson had come to the camp; that Rodney lives on Vanderlin Island and works for a barramundi fisherman; that Rodney would bring fish carcass to their camp for crab pots.  The deceased would give Rodney beer if he delivered bait.  Bait for beer was sometimes swapped.  Veasna Um says the deceased Hak Tong told him Rodney came around on one occasion with seven other people who were all male Aboriginal persons; they started to drink the deceased’s beer and they became drunk.  They drank the beer Hak Tong gave to Rodney; they all ended up sleeping at the camp and invited themselves to stay.  In the morning they asked for more beer and took the rest of the beer that was at the camp. 

[23]     Veasna Um also says the deceased were only occasional drinkers; that Hak Tong said these people knew his movements and knew he went to King Ash Bay every Monday; they had previously gone through his freezers; he therefore thought they needed to hide their beer.  Veasna Um states that they then saw a boat (dingy) pass them down McArthur River towards the camp.  There were six or seven Aboriginal men in it.  They were not going fishing but the deceased told him that save for Rodney it was the same mob that had been to the camp before.  He states he remembered seeing about four fires as they travelled down to the creek back to the camp; he did not know why people were starting those fires; he says they were not cooking.  At one point they saw the dingy again. 

[24]     Veasna Um said he did not see anyone making trouble when he stayed at Dugong Bay camp.  He said both the deceased always tied their boats in the same place.  He said the fuel containers at the camp were stored near the freezers; the deceased had about eight to eleven containers each; each container was of about 20 litres.  He confirmed the deceased did not smoke and did not cook near the fuel.  They used mosquito coils but not near the fuel.  He said the deceased did not have problems with anybody else, just with the boys who came to their camp. 

[25]     The plaintiff Simach Nuon makes reference in her statutory declaration provided to police[29] to what her deceased husband told her in various conversations.  He told her he had permission from a traditional owner “Archie” to fish at “Central Island”; that another crabber “Tam” was refused permission to fish at Central Island; that “Tam” became furious and was determined to have her deceased husband leave the island; that “Tam” told two of his friends, “Creek” and “Tien” to tell Hak to leave the island and to threaten him if he did not.  As her deceased husband was of a quiet nature, he had arranged for another friend and working partner “Yong” to defend him.  Simach Nuon says police settled this dispute after the crabbers raised concerns.  Thereafter no other problems occurred between those persons.

[26]     Simach Nuon says when she visited the site after her husband’s death, other crabbers told her that another crabber “Neil” had accused her husband of stealing crab pots.  She does not believe her husband’s death was an accident.  He had been a professional crabber for 10 years.  His body was located close to the water.  She says he would have been able to escape the fire by going into the water, leading her to believe he must have been killed by others.

[27]     Police had considered a number of possible causes of the fire; lightning strike; accidental fire and suspicious fire.  In relation to possible lightning strike the senior Meteorologist at the Bureau of Meteorology, Northern Territory regional office, concluded that it was unlikely that lightning would have occurred in the region on the night of 12-13 November 2007, though the possibility could not be excluded.  The opinion was that on the balance of probabilities convective activity had diminished at the relevant time and consequently ceased to be sufficient to maintain a thunder storm with prospects of lightening activity.[30]  The daily weather observations for the relevant period[31] indicate there was no rain.  It also indicates wind gusts of 48 kilometres per hour on 12 November 2007.  It was suggested this was not a significant speed and it could be concluded there was not a lightning strike.  It was submitted on behalf of the plaintiffs that given those conditions it was unlikely the 300 litres of petrol in containers would self ignite.  The plaintiffs’ submit the containers were approved and complied with Australian Standards.

[28]     The plaintiffs’ submitted there was no possibility the fire was caused accidentally by the deceased persons themselves.  This was because they were both adults, 50 years of age, and they had no reason to cause the fire; they were not smokers or drinkers.

[29]     In relation to the third possibility of the cause of fire I was referred to photographs[32] showing a number of empty fuel containers.  It was suggested someone must have emptied all fuel containers.  The first plaintiff has suggested it was on 12 November 2007 that she told her husband to collect all the empty fuel containers and they went to the petrol station at Borroloola.  The letter from NT WorkSafe to the Coroner[33] confirms the deceased purchased a total of 362.54 litres of unleaded fuel and 22.78 litres of diesel on 12 November 2007 in King Ash Bay.  It is suggested this supports the conclusion that someone had emptied all the petrol from the containers onto the bodies so they were burned beyond recognition. 

[30]     A further reason to hold an inquest was said to arise because Dr Sinton could not exclude skeletal damage.  It was submitted the question therefore arose as to whether both deceased were hit or knocked unconscious and then burnt to death.  It is suggested that they would have been able to run away unless there had been “foul play”.  It was submitted a further Pathologist’s opinion should be sought. 

[31]     The plaintiffs’ submitted the primary role of Coronial investigations was to identify the root cause of an incident that precipitated death with a view to analysing systemic failures that contributed to the death and deciding remedial responses. Counsel for the plaintiffs referred the Court to the Queensland Coronial Guidelines.  It was argued they should be followed in relevant Northern Territory proceedings.[34]  Counsel acknowledged these were not Northern Territory Coroners Guidelines.  It was common ground there were no applicable guidelines beyond what is provided by statute in the Coroners Act (NT).  It was acknowledged on behalf of the plaintiffs, the Deputy Coroner made findings as to the identity of the deceased persons and the approximate time and place of death, however because there was no determined cause of death finding, it was argued this Court should order an inquest take place. 

[32]     The plaintiffs referred to the Northern Territory Fire and Rescue Service, structure fire investigation report by Station Officer van Boxtel.[35]  In particular the Court was referred to the following part of the report: “Total destruction of the building which measured approx 50 square metres.  Building was constructed of local timber mainly mangrove sticks and some processed timber for flooring.  Approx 3 or 4 sheets of iron was located in the area.  Approx 50% of structure is over water”.  In terms of the points of origin the report states “unknown”.  In terms of where the fire spread to, the report notes “all of structure”.  It describes the depth of char to the bodies as an unusual sign.  The report also notes there were no doors or windows on the structure, hence it was treated as a suspicious fire given the intensity in an open environment.  It was also noted that the makeshift camp next door was hardly burnt save for the shade cloth that was singed by the fire. 

[33]     It was argued that without an inquest the Coroner could not be said to have sufficiently investigated the relevant circumstances concerning the death and that a number of suspicious matters should be examined thoroughly by police.  Left as it is, it was submitted the two deaths had been “written off” by the finding “undetermined”.[36] 

[34]     The Plaintiffs submitted recommendations on public safety should have been made in relation to fuel containers and storage.  Further, it was pointed out that both crabbers were in the habit of tying up their boats securely yet both boats were found to have left their moorings.  Only one of the boat’s engines was burnt. 

[35]     Officer Bradley Currie’s statement was referred to.  It states investigating police were unable to locate parts or remains of containers used to store the fuel.[37]

[36]     The plaintiffs suggest Tien Duong should be investigated further given Officer Luke Shilton mentioned in his statement he flagged him down as he went past the camp site heading up stream and Officer Shilton took his details.[38].  The plaintiffs allege there was some trouble with respect to Tien Duong.  Other persons the plaintiffs submit should be investigated are Archie Johnson, Rodney Johnson, Van Kien Tringh, and a further person “Greg”.

[37]     The plaintiffs pointed to the fact cigarette butts were found by the Crime Scene Examiner, Officer Timothy Sandry,[39] however no testing was done aside from that done by Denise Grover whose certificate suggests 11 cigarette butts.  Her testing excluded the deceased.

[38]     Forensic Scientist Denise Glover extracted DNA from the remains to confirm the identity of the deceased.  In relation to the cigarette butts she found a partial DNA profile from an unknown male person.  The deceased were excluded.  A second partial DNA profile indicated there may need to be confirmation from a NISK from Veasna Um for comparison with a partial profile seen previously in the laboratory.  Attempts to extract DNA from a number of cigarette butts were unsuccessful.[40]  The plaintiffs suggest there should be further testing for DNA and testing of Veasna Um.

[39]     The plaintiffs complain the Chief Fire Officer, (whose opinion at least initially was that the fire was suspicious), who was tasked with the investigation into the fire was not properly qualified.  The submission as I understand it is that if an inquest were to be held an expert of greater expertise could be utilized.  The submission (relevantly) was “There was no pyro expert report being obtained to substantiate that the deaths might possibly be caused by the fire.  The fire report of 25 January 2008 by the Chief Fire Officer … was not good enough as his qualifications in regards to his credential (sic), if any was not provided.[41]  Before this Court are the full qualifications and experience of the Chief Fire Officer who investigated the fire.[42]  I do not accept he was not properly qualified.  The evidence is to the contrary.  The plaintiffs have not proposed any person with superior expertise who disagrees with the conclusions of the Chief Fire Officer.

[40]     The plaintiffs submit all of the circumstances point to the need for a coronial inquest to fully examine the circumstances to establish the cause of the fire and the deaths.  They submit the findings of the Coroner are not reasonable; that there should be a public fact finding exercise in the public interest, (whether or not it is ultimately found the deaths were the result of accident), as there should be recommendations on how to prevent such deaths in the future.

Principles To Be Applied

[41]     As noted above, it is accepted these are reportable deaths over which the Coroner has jurisdiction to investigate.[43]  “Investigate” is defined in the Coroners Act (NT) to include an inquest.[44]  Clearly the primary purpose of the Coroner’s investigation into a death is for a Coroner to find, if possible, the identity of the deceased person; the time and place of death; the cause of death; the particulars needed to register the death under the Births, Deaths and Marriages Registration Act (NT) and “relevant circumstances concerning the death”.[45]  An investigation under the Coroners Act (NT) may or may not include holding an inquest.

[42]     It is clear the deaths here were investigated by the Coroner.  Having read the relevant analogous decisions from other jurisdictions, it seems the question of whether an inquest should be held, and whether particularly this Court should order an inquest be held requires consideration of whether an inquest, relying on available, credible and reliable evidence could raise a real possibility of making a finding on a determined cause of death.  If holding an inquest would be futile in terms of possibly leading to a finding on a determined cause of death and nothing would be gained from holding an inquest, an order should not be made.  Even if there were credible and reliable evidence raising a real possibility of shedding light on a particular aspect of the cause of death falling short of findings on a determined cause of death, that may well suffice depending on the importance of the factor.

[43]     This is not a case of a mandatory inquest under s 15(1) Coroners Act (NT).  None of the mandatory inquest criteria are applicable.[46]  A discretionary inquest “may” be held if the Coroner “thinks fit” and if the body of the deceased person is in the Territory or it appears to the Coroner that the death, or cause of death occurs in the Territory and “the Coroner suspects unlawful killing”.[47]  The functions of the Territory Coroner are to ensure that all reportable deaths are investigated and ensure that an inquest into a death is held where there is a duty to do so under the Act or where it is desirable that an inquest be held.[48]  As this was not a mandated Coronial and s 15(1)A Coroners Act (NT) did not apply, the obligations extended only to hold an inquest if the Coroner thought it fit. 

[44]     This Court is not bound to approach the question in the same manner as the Coroner, however the proper purpose of holding an inquest is still of fundamental importance.

[45]     In Clancy v West[49] (dealing with comparable Victorian legislation), Tadgell JA discussed the discretion to hold an inquest in any circumstances in which a Coroner having jurisdiction to investigate the death believes it is desirable to hold one.  It was said the provision plainly gives a Coroner who has jurisdiction to investigate a death a discretion not to hold an inquest if the mandatory provision does not apply and the Coroner believes it is not desirable to hold one.  The discretion is clearly a wide discretion.  His Honour said:[50]

A more absolute discretion conferred upon a Coroner to hold or not to hold an inquest in a case not falling within [the mandatory provision] could scarcely be formulated.

[46]     The same could be said of the discretion under the Northern Territory Coroners Act

[47]     Section 16 Coroners Act (NT) allows a person who has been notified of a decision not to hold an inquest to apply to the Supreme Court for an order that an inquest be held.  Section 16(3) Coroners Act (NT) provides:

The Supreme Court may if it thinks fit, make an order that an inquest be held.

[48]     The power of the Supreme Court to make an order under s 16(3) Coroners Act (NT) must be distinguished from s 44 Coroners Act (NT) dealing with the circumstances in which the Supreme Court has jurisdiction to declare some or all findings of an inquest void and make consequential orders to hold a new inquest or re-open an inquest.  Under s 44 Coroners Act (NT) the Supreme Court may make such an order if necessary because of fraud, consideration of the evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry; a mistake in the record of the findings; or that there are new facts or evidence; or the findings are against the evidence and the weight of the evidence. 

[49]     The power of the Court under s 16(3) Coroners Act (NT) is not confined or fettered by the same criteria.

[50]     Unlike s 44, s 16(3) Coroners Act (NT), is not a review of the decision of the Coroner.  Under s 16(3) Coroners Act (NT) the Supreme Court undertakes a fresh exercise of the jurisdiction.  The discretion is not constrained by any statutory formulation. 

[51]     As pointed out by Counsel for the Intervener, by analogy, a similar process applies in cases involving a review of the Coroner’s decision to perform an autopsy against the wishes of a senior next of kin.  Section 23(3) Coroners Act (NT) provides the senior next of kin of the deceased person may apply to the Supreme Court for an order that an autopsy not be performed and the Court, “in its discretion may make an order that no autopsy be performed”. 

[52]     In Wuridjal v Northern Territory Coroner[51] dealing with an application by the senior next of kin making an application under s 23(3) after the Coroner had decided an autopsy was necessary, Riley J, (as he then was), noted that an application under s 23(3) Coroners Act (NT) was not a review of the decision of the Coroner but rather an application in which the Supreme Court undertakes a fresh exercise of the discretion.  Further, His Honour held that the discretion to make an order that no autopsy be performed is one that is not fettered in any way.[52]  His Honour stated:[53]

What is required is a balancing exercise.  The weighing up of the competing interest may require an assessment of the strength of the available evidence and of the advantage to be obtained from adopting one course or another.  For example, if an autopsy would provide only marginal assistance to the Coroner in discharge for the Coroner’s functions, the fact that a post mortem would cause deep distress to family members may be sufficient to warrant the exercise of a discretion allowing an autopsy. (Citations omitted). 

Each case must be determined in light of its own facts and circumstances.  The exercise is one of balancing the identified competing interest.  That exercise involves a careful and sensitive consideration of all of the relevant circumstances of a particular matter.  Each case must be dealt with individually.  (Citations omitted).

[53]     Accepting the obvious differences between s 16(3) and s 23(3) Coroners Act (NT), there are similarities in the approach that should be taken.  A balancing exercise takes place when the Court is asked to exercise its powers under s 16(3) Coroners Act (NT).  The discretion needs to be approached assessing the strength of available evidence and determining after consideration, whether there would be any benefit in the holding of an inquest and whether it would be expected to yield further information that thus far has not come to light.  Any benefit that can be ascertained to flow to the next of kin needs to be considered, particularly if the holding of an inquest will contribute to an important finding.  As indicated, I do not consider eligibility to obtain victim’s compensation to be a proper basis for the exercise of the discretion. 

[54]     What would make the holding of an inquest “desirable” (in keeping with the overall objectives of the Coroners Act (NT))[54] is that there be some practical benefit to the next of kin in terms of better understanding of what occurred to the deceased, or that there be a benefit to the general public, a section of it, or to the overall administration of justice.  An inquest should not be held where it would clearly be a futile exercise.

[55]     In Clancy v West, (cited above) Tadgell JA held the similar Victorian section was understood to confer a jurisdiction upon the Supreme Court to override a decision of the Coroner to refuse to hold an inquest and as such should be considered a “jurisdiction exercisable sparingly”.  I would not regard the phrase “exercisable sparingly” as any restriction on the exercise of the jurisdiction, however after the evidence is considered carefully and the purposes of an inquest are properly understood, it is likely the discretion will in fact be exercised sparingly.

[56]     The authorities indicate that if the holding of an inquest would be futile, a Coroner would be justified in refusing to hold an inquest.  In Bilbao v Farquar[55] a Coronial Inquiry was adjourned while committal proceedings took place against two police officers who had previously been granted leave to appear at the Coronial.  The committal took place before the same Magistrate who had previously been conducting the Coronial.  The police officers were not committed for trial.  The deceased’s next of kin sought a resumption of the Coronial Inquiry.  When the same Magistrate refused to re-open the Inquiry an order was sought from the Supreme Court requiring the Magistrate to resume the Coronial Inquiry.  It was noted the Magistrate had excluded evidence in the course of the committal proceedings which would have been admissible at the Coronial Inquiry had it resumed. 

[57]     In relation to whether an inquest should be re-opened, the Court in Bilbao v Farquar held the matters that are to be considered are the underlying purposes of Coronial Inquiries; the satisfaction of the legitimate concern of relatives; the concern of the public in the proper administration of institutions, goal and the care of persons in custody.  Matters of public as well as private interest, including the position of discharged or acquitted persons are matters for proper consideration.  After dealing with those general matters the Bowen JA held:[56]

If a Coroner, upon a proper consideration of all these matters, comes to the conclusion that the resumption of an inquest would be futile or a waste of time that is, in effect, that the duty laid down by s 11 could not be usefully undertaken, he would be justified in refusing to resume the inquest.[57]

[58]     Hutley JA considered that a Coroner, in deciding whether to resume an adjourned inquest should not be concerned with evidence that had been excluded in other proceedings as a reason not to re-open the inquiry but whether such evidence would have probative value to assist the Coroner in the further inquiry.  Importantly His Honour suggested there is no reason to re-open an inquiry if the Coroner considers that further evidence will not assist the inquiry. 

[59]     Although Bilbao v Farquar concerns the powers of the Coroner, in my view similar considerations are relevant in exercising the discretion a fresh on the question of whether this Court should order an inquest be held.

[60]     It was also acknowledged in Clancy v West there should be some comparison between relevant information that an inquest might be expected to yield and information otherwise ascertainable.[58]  It is also apparent that a Coroner in deciding whether to hold an inquest should consider the relative costs of holding one and doing without one, duly weighing the benefits (if any) which an inquest might produce against the disadvantages (if any) which investigation (or further investigation) short of an inquest might entail.[59]  Once again, although these comments are directed to relevant considerations for a Coroner, they are also relevant in my view to the exercise of jurisdiction under s 16(3) Coroners Act (NT).

[61]     In the context of an application to quash the findings of a Coroner, Dunford J in Bhattacharya v Hamilton[60] stated it was necessary to determine whether there “is a reputable body of evidence, which, if accepted, would indicate that the originating finding as to the manner and cause of death was erroneous”.[61]  In that case the next of kin did not accept the cause of death as found by the Coroner but proceeded with a theory alleging a conspiracy to murder amongst medical staff and others.  In relation to these broad ranging beliefs and suspicions His Honour said:

There has not been one single piece of evidence produced at the hearing to suggest that the Coroner made any error in his finding.  In particular, there is not a single piece of expert medical opinion suggesting that the diagnosis was incorrect, the treatment inappropriate or negligent, or that the deceased’s death could have been induced or contributed to by some form of poison, as alleged by the plaintiff.

The plaintiff, no doubt, felt and continues to feel his wife’s death deeply, and it seems he continues to clutch at straws in the hope that somewhere, somehow, something may turn up which might raise the possibility that his wife’s death could have been avoided.  But suspicion, suggestion, hope, fear and imagination are no substitute for evidence.  There is simply no evidence to suggest that the Coroner’s findings were wrong or to indicate that it is in the interests of justice that an inquest be held.[62]

[62]     References in the cases to the possibility of a different outcome by virtue of the existence of a reputable body of evidence were further discussed in Veitch v The State Coroner.[63]  Justice Beech held that in this context “possibility” must be seen as a “real or realistic possibility, not a merely theoretical possibility”.  His Honour added that this principle referred also to the character of the evidence, (that is, cogent, credible, reputable), in order to be sufficient to enliven the power to order a new inquest.  His Honour considered any new evidence relied on must reach a threshold of some degree of cogency.[64]  The cogency of the evidence must be assessed before it is determined whether an inquest is justifiable.  Some assessment necessarily needs to be made of the material initially available to the Coroner and any additional material subsequently available. 

Further Considerations and Application of the Principles

[63]     It is appropriate in exercising the discretion a fresh I have regard to the material already before the Coroner in the investigation and any further evidence.  The plaintiffs have not here pointed to any further evidence that has not been the subject of proper investigation.  Generally the plaintiffs rely on certain conclusions being drawn from suspicions aroused by alleged incidents and circumstances.  In my view, taken separately or cumulatively, there is no evidence identified by the plaintiffs that indicates an inquest would be anything other than futile.  I have set out above the extensive material that was the subject of investigation.  As noted[65] because of the condition of the remains of both deceased, although there was no evidence of any recent ante-mortem traumatic skeletal damage, such damage could not be entirely excluded given the loss of parts of the skeletons and the distorting damage to the remaining fragments.  It was in those circumstances that despite the severe burns to the remains, it was not clear the burns had necessarily been the cause of death.  It was in those circumstances the cause of death remained undetermined. 

[64]     In relation to the deceased Hak Tong, I have set out the concerns the plaintiffs’ had over the finding of the pendant but not the chain.  I note Dr Sinton’s report that the yellow metal pendant with the remains of the metal mesh chain presented with the body.  There is nothing in the assertion about the placement of the chain and the pendant that raises evidence sufficient to think that more information would come to light if there were an inquest.

[65]     In my view the investigation by police was taken seriously and was comprehensive.  This lead to the brief being prepared for the Territory Coroner and is before this Court.  The crime scene was examined on 18 November 2007 by police when the deceased persons’ remains were discovered; further examination and processing of material from the crime scene took place on the following days; photographs and assessments were taken by the fire investigation officer; forensic testing of DNA extracted from the remains was taken to confirm the identities of the deceased persons; forensic testing of DNA extracted from cigarette butts found at the camp was undertaken.  Further examinations and searches of the camp by investigators took place on 5 December 2007; a controlled re-enactment of the fire took place; a “structure fire” investigation report was obtained; forensic testing was done of burnt and melted material taken from the scene of the fire and tested by Forensic Science SA; the weather report was obtained.[66] 

[66]     Police contacted Borroloola Medical Clinic to identify if any person had received treatment for burns during the relevant period.  Police obtained significant material relating to the mud crab licences and activity in the King Ash Bay area.  The investigation grappled with the tension in some of the relationships between licensees.  Police also obtained numerous statements from all of the persons the plaintiffs have mentioned as being in some way suspicious or knowing further information.  No motive for unlawful killing of the deceased persons has been identified.  No person has been identified as being responsible for the deaths.

[67]     Police commenced the investigation with some consideration of suspicious circumstances.  In other words they did not have a closed mind to the issues that are being raised on behalf of the plaintiffs.  Of the many persons police spoke to or took statements from, this still did not assist in determining the cause of the fire or providing evidence to identify any other person who may be responsible for the deaths.  In my view the conclusions of Detective Senior Constable Currie regarding the course of and findings of the investigation[67]  are reasonable.  He came to a view that although it could not be stated with certainty that the deceaseds’ deaths were not suspicious, there is no solid evidence or information forthcoming to suggest “foul play”.  Without pointing to any further evidence or how an inquest would reveal such evidence it has not been demonstrated that an inquest into the deaths of the deceased would serve any useful purpose.  It still remains a possibility that the fire at the deceased’s camp was started accidentally by one of the deceased themselves.[68]

[68]     On some of the more specific issues raised such as the question of who may have emptied the fuel containers, I do not see how the holding of an inquest could now provide evidence about that issue.  The matter was investigated extensively in 2007.  On 19 November 2007 when police and investigators attended there were no apparent signs of the containers at the camp.  On further investigation the Fire Investigation Officer identified the location of the seat of the fire.  The plaintiffs said that was the place the deceased persons normally stored their fuel.  On 15 December 2007 samples of charred wood and plastic were seized from that point and forwarded to Forensic Science SA.  The forensic testing showed the sample from the location of the seat of the fire was likely to comprise some of the fuel containers melted by the fire.[69]  There is every possibility the remaining fuel containers were consumed by the fire. 

[69]     I agree there are unanswered questions about some issues raised however I do not see a way forward in ordering an inquest when there will be no further material than that which has been uncovered by police and the Coronial investigation.  I accept the plaintiffs feel this deeply but I do not see an inquest will go anywhere near to resolving the remaining questions.

[70]     As to the issue of the DNA testing of cigarette butts, at the most, any identifiable profile could only mean the likely presence at some stage of a particular person or persons at the camp.  The evidence indicates many persons had attended the camp at some stage prior to the fire.  The suggestion by the plaintiffs that Veasna Um be tested at the most could only lead to confirmation of him having been at the camp – something already known as he has told police about working with the deceased persons at the camp.[70]

[71]     As to the plaintiffs’’ argument that there should be an inquest in order to allow public comments be made under s 34(2) Coroners Act (NT),[71] the Deputy Coroner had a discretion to make comment on safety issues.  In the circumstances however, it is reasonable that she did not.  She was unable to find the cause of the fire so to make a recommendation about the storage or management of fuel or related work practises would not be consistent with her conclusion.  In any event, making a comment is a discretionary matter.  It is not a reason in this case to order an inquest be held.

[72]     Before the Court is a letter from NT WorkSafe to the Coroner’s Clerk[72] setting out the reasons why NT WorkSafe did not conduct an investigation.  It did however prepare two safety alerts to remind the commercial fishing industry and service station employers and attendants of their obligations under the Dangerous Goods Act (NT) and Workplace Health and Safety Act (NT).  This appears to be a reasonable and effective notification of the safety issues targeted to the persons most affected.  Holding an inquest would not significantly enhance this warning.  This was noted by the Deputy Coroner.

[73]     I accept what was said in Doomadgee v Clements[73] that the power of a Coroner to comment should be “construed liberally”.[74]  I agree this power should not be readily constrained.  It remains a matter of discretion however and nothing that was said in Doomadgee v Clements assists the plaintiffs here.

[74]     Added to the general failure of the plaintiffs to point to evidence or a reason to enliven the exercise of the discretion is the practical difficulty that the fire and deaths occurred over three years ago.  It is highly unlikely any further source of evidence that could assist an inquest would be found.

[75]     The application to the Court that an inquest be held is dismissed.

[76]     I will hear parties on costs.



[1] S 16(3) Coroners Act (NT) “The Supreme Court may if it thinks fit, make an order that an inquest be held”.

[2] There is no contention on the relevant dates and a substantial amount of the background facts as set out in the Affidavit of Simon Craig Wiese affirmed 1 July 2010.  This affidavit is referred throughout these reasons as “Exhibit D3”.

[3] Exhibit D3, Annexures SCW 2 and SCW 3.

[4] Briefing Note, A/Sergeant Wade Rogers, Exhibit D3, Annexure SCW1.

[5] Exhibit D3, Annexure A.

[6] S 3 Coroners Act (NT).

[7] Exhibit D3, paras 5 and 6, Annexures SCW 4 and SCW 5.

[8] Primarily within Exhibit D3.

[9]Exhibit D3, Annexure SCW 7.

[10]Exhibit D3, Annexure SCW 8.

[11] Affidavit of Simon Craig Wiese, Annexure SCW 9 and SCW 10.  Sections 16 and 34 Coroners Act (NT).

[12] Exhibit P6 in these proceedings.

[13] Exhibits P7, P8 and P9.  The Court was told most of these photos were within the brief of Evidence in the Coroner’s file.

[14] In these proceedings the autopsy report in relation to Xinh Yong Ang prepared by Dr Sinton dated 10 March 2008 is Exhibit D3, Annexure C.  The autopsy report in relation to Hak Tong prepared by Dr Sinton dated 10 March 2008 in these proceedings is Exhibit D3, Annexure D.

[15] “Coroner” includes a “Deputy Coroner” under s 3 Coroners Act (NT).

[16] The Coroner’s findings in these proceedings are at Exhibit D3, 2010, Annexure L, SCW 9 and SCW 10.

[17] Coroners Findings Exhibit D3, Annexure L, SCW 9 at 5 and SCW 10 at 5.

[18] Affidavit of Sivhong Taing sworn 17 March 2010 at Para 4.  This affidavit will be referred to as Exhibit P1 throughout these reasons.

[19] Ex parte Minister of Justice; Re Malcolm; Re Inglis [1965] NSWR 1598 at 1601, per McClemens J.

[20] Exhibit P1, para 7. These matters appear to be raised in a general way in the “Plaintiffs’ Points of Claim”, para 6(b).

[21] Referred to generally in “Plaintiff’s Points of Claim” para 6(b)(V).

[22] Simach Nuon’s affidavit sworn 11 June 2010 was read.  Throughout these reasons it is referred to as Exhibit P2.

[23] Exhibit P2, para 4(a).

[24] Exhibit P2, paras 4B and C.

[25] Exhibit D3, Annexure F(xviii), 1 October 2008.

[26] Exhibit P2, para 4D.

[27] Exhibit D3, annexure F(xx), dated 3 December 2007.

[28] “Plaintiffs’ Points of Claim” para 6(b).

[29] Exhibit D3, Annexure F(xi), 27 August 2008.

[30] Letter, Sam Cleland, Exhibit D3, Annexure I(i).

[31] Set out in Exhibit D3, page 375, Australian Bureau of Meteorology.

[32] Within Exhibit P8.

[33] Exhibit P6, 7 April 2009.

[34] State Coroners Guidelines – Version – December 2003 – Queensland.

[35] Exhibit D3, Annexure H, Inspection made on 19 November 2007 forming the basis of the report.

[36] T 4/3/2010.

[37] Annexure F, xxiv, Exhibit D3.

[38] Exhibit D2, F Annexure F, xxxvii.

[39] Exhibit D2, Annexure F, xxx(vi), Officer Sandry collected cigarette butts in a pot with a handle in the living area and in a pot without a handle.

[40] D2, Annexure F, xxvii.

[41] Submissions, Reply to Intervener’s Outline of Submission, 1 March 2011.

[42] Exhibit D5 and annexures.

[43] S 14(1),(2) Coroners Act (NT).

[44] S 3 Coroners Act (NT).

[45] S 34 Coroners Act (NT); s 37 Births, Deaths and Marriages Registration Act (NT) allows for registration on the basis of particulars required by the Regulations.  A Registrar may however register a death on the basis of incomplete particulars.  Reg 5 Births, Deaths and Marriages Regulations (NT) sets out the particulars required for notification including whether the cause of death was reported to the Coroner and whether the cause of death was established or confirmed by post-mortem examination.

[46] S 15(1) only applies if the death is a “reportable death” under s 14(1) Coroners Act (NT) and either the deceased was a person held in care or custody or death was caused or contributed by injuries sustained while in custody or the identity is not known.

[47] S 15(1)A Coroners Act (NT).  This is prefaced by the death being a reportable death which under s 14(1) Coroners Act (NT) confers jurisdiction.

[48] S 4A Coroners Act (NT) – Functions of Territory Coroner.

[49] [1996] 2VR 647.

[50] Clancy v West (above) at 653,

[51] (2001) 165 FLR 317.

[52] Wuridjal at 319.

[53] Wuridjal at 320.

[54] S 4A(d) Coroners Act (NT).  Although expressed as the functions of the Coroner, in my view reflect a major objective of the Act.

[55] (1974) 1 NSWLR 377.

[56] Bilboa v Farquar (above) at 388.

[57] S 11 Coroners Act (NSW) sets out the duty of a Coroner to hold an inquest but is expressed to be “subject to the Act”.

[58] Clancy v West above at 655.

[59] Clancy v West above 655-656.

[60] [2000] NSW SC 102.

[61] Bhattacharya v Hamilton above at para [60].

[62] Applying McHugh JA in Herron v Attorney General for New South Wales 8 NSWRL 601 at 617.

[63] [2008] WASC 187.  Similar sentiments are found in Domaszewicz v State Coroner (2004) 11 VR 237.

[64] Veitch v State Coroner (above), Para [50].

[65] Para [6] (above).

[66] Exhibit D3, Annexure I(i).

[67] Memorandum of DSC Currie, Exhibit D2, Annexure A.

[68] Memorandum of DSC Currie, Exhibit D2, Annexure A.

[69] Exhibit D2, Annexure J.

[70] Exhibit D2, Annexure F(xx); (xxvi); (xxvii); (xxviii).

[71] “A coroner may comment on a matter, including public health or safety or the administration of justice, connected with the death or disaster being investigated”.

[72] Exhibit P6.

[73] [2005] 2 Qd R 352).

[74] Doomadgee v Clements (above) at 360 per Muir J.