Commissioner of Police, New South Wales Police Force v Attorney General of New South Wales

1. [1]

   On 20 December 2022 Ms Tammy Shipley, an Aboriginal woman, died in custody in the Mum Shirl Unit of Silverwater Women’s Correctional Centre (SWCC). In those circumstances, s 23(1) of the Coroners Act 2009 (NSW) (the Act or the NSW Act) confers jurisdiction on, relevantly, the State Coroner “to hold an inquest concerning the death” of Ms Shipley, and s 27(1)(b) requires that an inquest be held. The main issue on this well-argued application for judicial review is the criterion delimiting the outer boundary of the s 23(1) jurisdiction.

2. [2]

   The plaintiff is the Commissioner of Police, NSW Police Force (the Commissioner). She contends that the State Coroner (the Coroner), who is the second defendant, lacks jurisdiction to inquire into certain matters including dealings Ms Shipley had with the New South Wales Police Force (NSWPF) prior to her death, in particular in the period between 9 and 14 December 2022.

3. [3]

   The third defendant, Ms Vicki Shipley, is the mother and senior next of kin of Ms Tammy Shipley. Ms Vicki Shipley had been granted leave to appear at the inquest and made submissions to the Coroner. As a party in this Court she had the primary carriage of the argument resisting the relief sought in the summons.

4. [4]

   The Attorney General of New South Wales was joined as the first defendant to the summons at a time when the only other defendant, the Coroner, had appropriately filed a submitting appearance save as to costs. The Attorney’s position is that he is not an interested party in, or otherwise involved with, the inquest, and does not advocate for a particular outcome in the judicial review application. However, the Attorney has not sought to be removed as a party as there are matters concerning the jurisdiction of the Coroners Court in respect of which the Attorney seeks to assist the Court. The Attorney’s submissions proceeded appropriately on that basis.

5. [5]

   As the Commissioner’s challenge to jurisdiction fails, the summons must be dismissed.

Background

1. [6]

   What follows is drawn from [10]-[51] of the Coroner’s carefully considered and comprehensive reasons for her decision given on 16 January 2025 (the Decision or D), which it is not necessary to repeat in full. The basic facts are largely uncontroversial, and there was no attempt to challenge the Coroner’s account of them on the summons in this Court. To the extent that any of these matters might be contested, I do not understand it to be disputed that there is sufficient reason to think that they might be established in the ordinary ways in the course of an inquest, which is enough for present purposes.

2. [7]

   Ms Shipley, who was 47 years old, had a long history of mental health issues including admissions to hospitals. She had also had many dealings with the NSWPF, commencing in 1992 in relation to stealing and break and enter offences. Over the years she was charged with domestic related common assault, drug and shoplifting offences. Several of Ms Shipley’s offences were dealt with under mental health legislation which enabled the magistrate to divert matters away from the criminal justice system where a person was more appropriately dealt with in a mental health facility.

3. [8]

   In 2016, Ms Shipley spent four months in custody for an offence of stalk/intimidate. During that time, the Justice Health and Forensic Mental Health Network (JHFMHN) noted her diagnoses of Schizoaffective Disorder and Bipolar Affective Disorder along with a history of cannabis, “Ice” and heroin use.

4. [9]

   Over a period of approximately 25 years Ms Shipley also regularly came to the attention of the NSWPF as a victim of domestic violence.

5. [10]

   Between January and November 2022, Ms Shipley came to the attention of NSWPF officers on four occasions. These included police detaining Ms Shipley under s 22 of the Mental Health Act 2007 (NSW) on 13 January 2022 and transporting her to Campbelltown Hospital Emergency Department where she was found to be “a mentally ill person”, and police voluntarily transporting Ms Shipley to Campbelltown Hospital Emergency Department after she presented to Macquarie Fields Police Station suffering hallucinations on 26 November 2022.

6. [11]

   The details of what occurred between 9 and 14 December 2022 are important. The Coroner addressed those matters at D[12]-[20], which are reproduced in full below (omitting footnotes).

7. [12]

   It should be noted that the Commissioner emphasises that Ms Shipley had been in the custody of New South Wales Corrective Services (NSWCS) from about 1 a.m. on 10 December 2022, after approximately six hours in NSWPF custody.

8. [13]

   The Coroner made preparations to hold the inquest concerning Ms Shipley’s death.

9. [14]

   On 23 July 2024, the Crown Solicitor, assisting the Coroner, wrote to the Commissioner, stating that the Commissioner may have a sufficient interest in the subject matter of the inquest; identifying certain “issues emerging” that were relevant to the NSWPF; requesting certain policies or procedures of the NSWPF, including concerning engagement with persons who have a mental illness; and requesting a statement by a senior NSWPF officer. The Commissioner responded on 8 August 2024 that the Coroner had no jurisdiction to request the information sought or to conduct any inquiry in relation to the matters identified by the Coroner.

10. [15]

    Correspondence ensued, and the identification by the Coroner of the issues which she proposed to consider in the course of the inquest (including the documents she sought), and by the Commissioner of the issues said to be beyond jurisdiction, evolved in ways that are not presently material.

11. [16]

    On 3 September 2024, the Crown Solicitor’s Office received an application signed by the General Counsel, NSWPF (the Application). As recorded at D[29]:

12. [17]

    On 12 September 2024, in written submissions as to jurisdiction, the Commissioner identified the orders that she submitted the Coroner should make (at D[32]):

13. [18]

    The Coroner was unable to address the Application before the inquest was planned to commence on 16 September 2024. A regime was put in place to defer hearing the Application to the end of the inquest proceedings, which otherwise proceeded from 16 to 26 September 2024. After several rounds of written submissions, the Application was eventually heard on 17 October 2024.

14. [19]

    On 16 January 2025 the Coroner dismissed the Application, saying at D[125] that she declined to make the orders sought by the Commissioner as set out at D[32].

15. [20]

    As the arguments put to the Coroner are largely reflected in those advanced in this Court, it is unnecessary to address the way in which her Honour dealt with them in detail, save to note two matters.

16. [21]

    First, it was common ground before the Coroner that the jurisdiction conferred by s 23(1) was limited by a principle of remoteness from the death of the person. The Commissioner submitted that the applicable test was the common sense test of causation as identified in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 (March v Stramare): at D[62]-[64]. In the application of that test, the Commissioner submitted that examination of the question whether Ms Shipley should have been in custody when she died would conflate a possible precondition to her death (i.e., satisfaction of the “but for” test) with the common sense test of causation (at D[65]), which the Commissioner submitted was not satisfied in the circumstances. That being so, examination of Ms Shipley’s interactions with the NSWPF would be beyond jurisdiction.

17. [22]

    The Coroner did not accept the Commissioner’s submission. As her Honour said at D[57], s 81 of the Act requires findings as to the identity, date, place, manner and cause of the identified person’s death, and for those findings to be recorded in writing. As to the words “manner and cause of the person’s death” in s 81(1) of the Act, her Honour said that “manner of death” should not be too narrowly construed (at D[131]), and that in appropriate circumstances the exploration of the “manner” of death may go beyond exploration of causative matters: at D[134]. Her Honour accepted that the question was one of remoteness but said that it was not readily susceptible to definition: at D[131].

18. [23]

    Her Honour also accepted the submission made by counsel assisting that it was within “a common sense test” and not beyond the scope of her jurisdiction to look at the circumstances in which Ms Shipley came to be in custody: at D[137].

19. [24]

    Her Honour then said the following (footnotes omitted):

20. [25]

    Secondly, addressing a submission made on behalf of the Commissioner distinguishing an “investigatory stage” from the “curial phase”, her Honour said at D[146]: “it is the very nature of an inquiry that some issues emerge as the inquest/inquiry takes place.” Her Honour went on to say (footnotes omitted):

21. [26]

    It should be noted that the Commissioner identified the matters which she said were beyond the Coroner’s jurisdiction in different terms at different times (to some extent reflecting developments in the focus of the Coroner’s attention). They included the matters referred to at par 1 of the Application and at par 50.1 of the Commissioner’s submissions quoted at D[32]. I also understood them to include, in this Court, the matters referred to at D[138]-[142] and D[150]. I have not found it necessary for present purposes to do more than to describe all of those matters as the Contested Issues.

The Commissioner’s summons seeking judicial review

1. [27]

   The Commissioner filed a summons seeking judicial review of the Decision. Some of the grounds identified and the relief sought in the summons were not pressed. The Commissioner’s ultimate position was that the Decision should be set aside and remitted to the Coroner for reconsideration according to law. The Commissioner relied on the following grounds:

2. [28]

   It was clear from the way in which the Commissioner put her argument that the test of what was “too remote from the death of Ms Shipley” (and thus the correct “test of jurisdiction”) for the purposes of Ground 1 was asserted to be the “common sense test of causation” referred to in Ground 2. It was also clear that the point of statutory construction raised in Ground 4 concerned the words “the manner and cause of the person’s death” in s 81(1)(c), and that that point was made in support of the asserted test identified in Ground 2.

3. [29]

   The Commissioner proceeded on the footing that the success or failure of the summons turned ultimately on the test of remoteness. That is, that it was necessary to show that the Coroner had applied the wrong test in order to show a legal error constituting jurisdictional error.

Meaning of “jurisdiction” in s 23(1)

1. [30]

   The Commissioner’s grounds of review use the terms “power” and “jurisdiction” without distinguishing between them; cf. Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [48] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. It is convenient to say something at the outset about the meaning of the word “jurisdiction” in the context of coronial proceedings, and to identify some matters that must be within jurisdiction, before turning to consider whether the Commissioner’s causal test of remoteness correctly identifies the outer limit of the jurisdiction conferred.

2. [31]

   The conferral of coronial jurisdiction should be understood in light of the close connection between the coroner’s investigative functions and the inquisitorial aspects of an inquest. Section 10(1) of the Act relevantly provides:

3. [32]

   The investigative aspect of the coronial function is supported by s 51(2), which provides: “A coroner may give a police officer directions concerning investigations to be carried out for the purposes of coronial proceedings or proposed coronial proceedings.”

4. [33]

   In this case s 23(1) of the Act confers jurisdiction on the Coroner “to hold an inquest” into Ms Shipley’s death as follows:

5. [34]

   The extent of the conferral of jurisdiction is thus a question of construction of the words, “has jurisdiction to hold an inquest concerning the death … of a person”. Those words confer authority to perform the functions of a coroner holding such an inquest. For example, even in the absence of further provision in the Act, those functions would include receiving evidence for the purpose of the inquest.

6. [35]

   The Commissioner’s Ground 1 asserts that the Coroner has “no power [i.e., no authority] … to inquire into, and make findings or recommendations in respect of” various subject matters. As will be seen, Ground 1 raises the extent of the Coroner’s authority to perform two distinct but closely related functions of a coroner “hold[ing] an inquest”: identifying the particular issues to be decided, and deciding the issues so identified.

7. [36]

   The latter function accords with the primary legal meaning of the word “jurisdiction” when used in connection with a court: “authority to decide”. In the context of adversarial proceedings litigated in a court, jurisdiction is the authority to decide some controversy between the parties, who will in some way have identified the issues to be decided.

8. [37]

   By contrast, while the Coroners Court is an inferior court of record (Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 6 per Hunt J; Decker v State Coroner of NSW (1999) 46 NSWLR 415; [1999] NSWSC 369 at [6] per Adams J), the juristic nature of an inquest is not merely adversarial, and there are no parties. As was said in Musumeci v Attorney General of New South Wales (2003) 57 NSWLR 193; [2003] NSWCA 77 at [33] per Ipp JA (Beazley JA agreeing), an inquest is a hybrid process containing both adversarial and inquisitorial elements. Coroners nevertheless exercise judicial power, notwithstanding the executive nature of their functions, and the proceedings in the Coroners Court involve the administration of justice.

9. [38]

   In the absence of issues defined by parties, and given the hybrid inquisitorial aspect of an inquest, one of the functions of a coroner holding an inquest is to identify the specific issues to be pursued (that is, the matters to be the subject of evidence and submissions and then decided). It was thus not disputed in this case that, within the limits of the coroner’s “jurisdiction to hold an inquest concerning the death … of a person”, the scope of the inquest is a matter for the coroner: Conway v Jerram [2011] NSWCA 319 (Conway CA) at [48] per Young JA. That is to say, subject to any express provision (such as the requirement to make the findings in s 81(1) discussed below, or the exclusion of certain matters by s 78), the conferral of “jurisdiction to hold an inquest” carries with it a broad discretion to identify the specific issues to be pursued at the inquest. Those issues may evolve as the investigation and the inquest itself proceed.

10. [39]

    Relevantly for present purposes, the words “jurisdiction to hold an inquest” in s 23(1) thus mean not only the authority to decide matters arising at an inquest, but also the authority to determine, within the limits of the s 23(1) jurisdiction, which particular issues are to be decided.

11. [40]

    However, the latter aspect of the coroner’s authority is not free-standing. Although the coroner’s discretion as to the scope of the inquest is broad, the discretion must be exercised judicially and for the purpose for which the discretion is conferred. As to the first point, among other things, the discretion cannot be exercised arbitrarily or capriciously. As to the second point, the coroner’s discretion to identify the particular issues to be pursued and decided at an inquest is incidental to performing the coroner’s functions (that is, exercising the coroner’s powers or performing the coroner’s duties) in holding an inquest. The coroner’s discretion to identify issues to pursue must be exercised for that purpose.

12. [41]

    Two powers which the Act confers on a coroner were central to the argument on the summons about the outer limits of a coroner’s jurisdiction to hold an inquest concerning the death of a person. Sections 81 and 82 relevantly provide as follows.

13. [42]

    It should be noted that the coroner “must” (i.e., has a duty to) exercise the power to make “findings … as to” the matters identified in s 81(1) (including as to “the manner and cause of the person’s death”). By contrast, s 82(1) confers a discretionary power to make recommendations “in relation to any matter connected with the death”. The potential width of the subject matters these provisions contemplate is discussed below.

14. [43]

    For immediate purposes, it is important that ss 81(1) and 82(1) do no more than identify the object in view: to make findings in various categories or to make recommendations. As discussed above, within the limits of the s 23(1) jurisdiction, it falls to the coroner to identify the particular issues to be decided at the inquest for the purpose of exercising such powers. For example, the coroner has a discretion to identify the lines of enquiry to pursue, any competing hypotheses to consider, and any questions of primary fact to resolve with respect to the physiological “cause of the person’s death” in s 81(1)(c).

15. [44]

    However, as noted above, the discretion to identify issues to pursue must be exercised judicially and only for the purpose of performing the coroner’s functions in holding the inquest. Again taking s 81(1)(c) as an example, one of the coroner’s powers is to make findings as to the “manner and cause of the person’s death”. Thus, where a mountaineer’s rope breaks and she falls to her death, it would plainly be for the purpose of exercising the s 81(1)(c) power for the coroner to identify as issues to pursue at the inquest the rated breaking strain of the climber’s rope, the conditions in which it had been kept and whether it had been tampered with. The same might not be true where the climber died of cardiac arrest before commencing her ascent.

16. [45]

    It must follow from the conferral of the s 81(1) power — and I did not understand this to be disputed — that the s 23(1) conferral of “jurisdiction to hold an inquest” extends at least to authority to decide the factual matters forming the basis of the ultimate findings required by s 81(1). It must equally follow from the conferral of the s 82(1) power that the “jurisdiction to hold an inquest” also extends to authority to decide the factual matters forming the basis of any ultimate s 82(1) recommendation.

17. [46]

    Moreover, within the limits of the jurisdiction to hold an inquest that s 23(1) confers on a coroner, the coroner’s authority to decide extends to issues that the coroner has identified in the proper exercise of discretion for the purpose of exercising the ss 81(1) or 82(1) powers.

18. [47]

    For example, in light of a coronial investigation, the coroner might have identified several possible pathological processes as the potential “cause of the person’s death” for the purposes of s 81(1)(c). It might be necessary to consider a complex of expert medical evidence to decide which pathological process was the cause of death. The conferral of jurisdiction to hold an inquest in which the coroner is to decide the cause of death includes the authority to consider and make a decision upon the whole complex of evidence. Put another way, the conferral of jurisdiction authorising the coroner to decide that X was the cause of death necessarily confers authority to decide, as part of a process of reasoning by elimination, that Y and Z, two competing hypotheses, were not the cause of death.

19. [48]

    Similarly, within the limits of the s 23(1) jurisdiction, the coroner has discretion to identify factual issues to be pursued and decided at an inquest for the purpose of exercising the discretion whether to make a s 82(1) recommendation. No doubt there may be a substantial overlap between the issues to be decided for the purpose of making s 81(1) findings (in particular, as to the “manner and cause of the person’s death”) and those to be decided for the purpose of making a s 82(1) recommendation “in relation to any matter connected with the death”. But the latter may extend to at least some matters beyond the former, particularly where the recommendation is directed to systemic issues (as to which, see further below). For example, new hospital procedures adopted after a person’s death might not themselves be within the “manner and cause” of death, but the fact and extent of the new procedures might well be relevant to whether or not to make a s 82(1) recommendation. Again, the jurisdiction s 23(1) confers to hold an inquest in which the coroner is given a discretion to make such recommendations includes the authority to decide factual matters that the coroner has properly identified as relevant to exercising the s 82(1) discretion.

20. [49]

    As noted above, the Commissioner’s grounds of review use the terms “power” and “jurisdiction” interchangeably. It was, however, made clear that all three grounds are directed to establishing that, applying the Commissioner’s test of remoteness, the Contested Issues fall outside the limits of the Coroner’s jurisdiction conferred by s 23(1). The grounds are not directed to the availability or exercise of specific powers. Thus, although the Application had sought that the Coroner withdraw, e.g., the request for a statement, it was made clear that if, contrary to the Commissioner’s position, the Coroner had jurisdiction to pursue and decide the Contested Issues, the Commissioner did not suggest that the Coroner lacked power to make the request. (Such power was said to arise either by implication from the conferral of functions on the Coroner under s 10 of the Act, or pursuant to the directions power in s 49(1); it is unnecessary to decide.)

Consideration

1. [50]

   The effect of the Commissioner’s Ground 1 is to assert that the Coroner has exceeded (or is proposing to exceed) her jurisdiction by pursuing and deciding issues said to be “too remote from the death of Ms Shipley”, namely, (a) the appropriateness of the NSWPF’s interactions with Ms Shipley and (b) the NSWPF’s institutional frameworks for dealing with persons suffering from mental illness. Read together, Grounds 2 and 4 assert that for this purpose the test of jurisdiction is what, as a matter of common sense, caused Ms Shipley’s death.

2. [51]

   It is convenient to address Grounds 2 and 4 before considering Ground 1. I have concluded that the Commissioner’s test of the outer limit of the coroner’s jurisdiction should not be accepted. It is not required or justified by the text of the Act and it is contrary to the Act’s purpose. It is convenient to address the Commissioner’s arguments by reference to the issues discussed below.

3. [52]

   The scope of the authority to pursue and decide issues which s 23(1) confers on the coroner is a question of statutory construction. The starting and ending points are the text, read in context. It is appropriate to begin with the statute, before turning to the legislative history and the secondary materials. As no party ultimately suggested that any binding authority determined the particular question before the Court arising under the Act, discussion of the authorities on which the Commissioner relies, most of which concern other statutory regimes, may largely be deferred until after consideration of the terms of the statute.

4. [53]

   The words of conferral in s 23(1) are “has jurisdiction to hold an inquest concerning the death or suspected death of a person”. The word “concerning” identifies a relationship between two subject matters. As with other relational terms, it is capable of capturing a potentially broad range of matters: see P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook Co) at [4.420]. “Concerning” may be apt to describe a more direct relationship, and therefore to capture a narrower class of matters than, for example, “relating to”. A synonym for “concerning”, and one which is not inapposite in this context, is “about”. However, the word must ultimately take its legal meaning from its context including the scope and object of the provision and the purpose it serves. The nature and closeness of the required relationship will generally depend on that context, including the purpose for which the relationship is being identified: cf. Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172 at [88] (relational term “under”). Moreover, as was pointed out in that case at [105], by reference to what French CJ said in R v Khazaal (2012) 246 CLR 601; [2012] HCA 26 at [31], “[g]enerally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases. A more comprehensive approach may be confounded by subsequent cases.”

5. [54]

   The definition of “inquest” in s 4(1) uses the same language as s 23(1): “inquest means an inquest concerning the death or suspected death of a person”. As a matter of text (as opposed to legislative history — see below) the definition takes the interpretation of the words “an inquest concerning” no further.

6. [55]

   Section 23 itself gives no indication of the outer limits of the conferral, although the circumstances listed in paras (1)(a)-(e) suggest that the coroner’s authority to decide extends to matters in some way relating to those circumstances. It might be noted that other than s 23(1)(c) (“as a result of police operations”), none of the circumstances identified in s 23(1) requires even a reasonable suspicion of any causal connection between those circumstances and the death.

7. [56]

   As noted above, by s 27(1), “An inquest concerning the death or suspected death of a person is required to be held in any of the following circumstances— … (b) if the jurisdiction to hold the inquest arises under section 23”. That provision repeats the language of “an inquest concerning” and, to that extent, takes the matter no further. But by requiring that an inquest be held when the jurisdiction arises under s 23(1), s 27(1) emphasises the significance of the circumstances in which the s 23 jurisdiction arises, being those in s 23(1)(a)-(e).

8. [57]

   The general conferral of jurisdiction in s 21(1) of the Act again uses the same language (“has jurisdiction to hold an inquest concerning the death or suspected death of a person”) and takes the matter no further:

9. [58]

   However, s 3 of the Act includes the following:

10. [59]

    Four points should be noted. First, there is nothing in the language of s 3 suggesting that the object in par (e) is subordinate to or constrained by the object in par (c). Secondly, both objects are capable of informing the purpose of the conferral of jurisdiction to hold an inquest, which is part of the context relevant to construing the word “concerning” in s 23(1). Thirdly, the objects in s 3(c) and (e) foreshadow the powers conferred by ss 81(1) and 82(1), which are relevantly set out above. Fourthly, the words used are “recommendations in relation to matters in connection with an inquest”, which are arguably wider than the words in s 82(1) itself: “recommendations … in relation to any matter connected with the death”.

11. [60]

    It was submitted on behalf of the Attorney General, and not disputed, that ss 81(1) and 82(1) both confer powers on the coroner, one difference being that a coroner “must” exercise the power in s 81(1), whereas a coroner has a discretion whether to exercise the power in s 82(1).

12. [61]

    As explained above, the jurisdiction conferred by s 23(1) must extend at least to authority to decide factual matters forming the basis of the ultimate findings in s 81(1); the factual basis and the content of any s 82(1) recommendations; and any issues properly identified by the coroner for the purpose of exercising the power to make the ultimate s 81(1) findings or the discretion to make any s 82(1) recommendation.

13. [62]

    The question in the present case is whether, as the Commissioner contends, the jurisdiction which s 23(1) confers on the coroner is constrained by a principle of remoteness, such that the coroner has no authority to enquire into and make findings or recommendations in respect of a matter unless there is (or might be), as a matter of common sense, a causal connection between the matter and the death.

14. [63]

    The Commissioner’s argument focused on s 81(1)(c), which requires a finding as to “the manner and cause of the person’s death”. It was common ground that the word “cause” here means the physiological cause of death. Although different views might be held about whether the words “manner and cause” address two different concepts, or instead function as a composite phrase, it was not in dispute that these words extend beyond the physiological cause of death. Senior Counsel for the Commissioner acknowledged that these words have been construed to mean the circumstances surrounding the death. For example, in Conway v Jerram (2010) 78 NSWLR 689; [2010] NSWSC 371 at [52] (Conway SC), Barr AJ concluded that the phrase “manner of death” should be given “a broad construction so as to enable the coroner to consider by what means and in what circumstances the death occurred”. To the extent that Ground 4 contends for a narrower construction of the words “the manner and cause of the person’s death”, it must be rejected.

15. [64]

    It may be noted that the circumstances surrounding a death are not confined to those which, as a matter of common sense, cause it. Let it be assumed that an elderly inmate, “temporarily absent from … a correctional centre” within the meaning of s 23(1)(d)(ii), dies of heart failure in a hospital. If the patient had been receiving the highest possible standard of medical care, the care provided could not sensibly be described as causing the death, as a matter of common sense. But the high standard of care provided would be a circumstance about which the coroner could make a s 81(1) finding as to the “manner” (or “manner and cause”) of death. The very fact that the medical care was not causative of the death might be a significant matter.

16. [65]

    Since s 81(1)(c) itself is not limited to circumstances that are causal, it does not support the Commissioner’s causal test of the limit of jurisdiction. Nor do the other paragraphs of s 81(1). For example, where unidentified human remains are found, the matters that it may be necessary or appropriate to consider for the purpose of making a finding as to “the person’s identity” are potentially wide-ranging, and may have nothing to do with the cause of death. Similarly, where the inquest concerns the “suspected death of a person”, the matters relevant to determining “the date and place of the person’s death” may or may not bear a relationship to the cause of death.

17. [66]

    The scope of the power to make recommendations in s 82(1) is also contrary to the Commissioner’s causational test of the limit of the jurisdiction conferred by s 23(1). The Commissioner submitted that the power in s 81(1) identifies the coroner’s primary functions at an inquest (to make certain findings), to which the function of making a s 82(1) recommendation is secondary or ancillary. It may be accepted that the s 81(1) functions are “primary”, in the sense that that description follows from the fact that s 81(1) is mandatory while s 82(1) is discretionary. But that description does not assist when considering the significance of s 82(1) for the purposes of construing the scope of the conferral of jurisdiction in s 23(1). Section 82(1) confers a power which is not in terms confined by the functions conferred by s 81(1). To the extent that the Commissioner submits that s 82(1) does not add to the analysis when construing the scope of the conferral of jurisdiction in s 23(1), the submission should be rejected. The oft-quoted statement in The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54 bears repeating (footnotes omitted):

18. [67]

    Far from suggesting that s 82(1) is confined by reference to s 81(1), the language used in s 82(1) is “may make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death … with which an inquest or inquiry is concerned”.

    1. (1)

       The fact that the power is discretionary, and extends to recommendations the coroner considers desirable, suggests a degree of flexibility that is inconsistent with the narrow focus of the Commissioner’s test.

    2. (2)

       The words used to identify the relationship between the “matter” and the “death” are not “any matter causing the death”, but “any matter connected with the death”. The ordinary meaning of that language is capable of capturing subjects extending beyond the March v Stramare common sense test of causation. There is nothing in the text suggesting that those words should be given a narrower legal meaning.

    3. (3)

       The very general language used in s 82(2) is again not subject to a causal limitation: “Without limiting subsection (1), the following are matters that can be the subject of a recommendation— (a) public health and safety, (b) that a matter be investigated or reviewed by a specified person or body.”

19. [68]

    Nor is there anything in the scope or objects of the Act, or its purpose as gleaned from its terms, suggesting that the s 82(1) power is to be confined by reference to s 81(1). To the contrary, the object in s 3(e) is, if anything, as noted above, expressed more broadly than is s 82(1) itself: “to enable coroners to make recommendations in relation to matters in connection with an inquest or inquiry”, rather than “connected with the death”.

20. [69]

    The powers in ss 81(1) and 82(1) thus assist by identifying matters which must be within the coroner’s authority to decide conferred by s 23(1). These go beyond the cause of death. The breadth of the subject matter of even s 81(1)(c) itself shows that the coroner’s s 23(1) jurisdiction must extend beyond the cause of death to the circumstances surrounding the person’s death. In the result, ss 81(1) and 82(1) are inconsistent with the causational test of remoteness proposed by the Commissioner.

21. [70]

    The legislative history also militates strongly against the causational test of remoteness for which the Commissioner contends. (See Interpretation Act 1987 (NSW), s 34(1)(a) and (b)(i).)

22. [71]

    Section 4 of the Coroners Act 1960 (NSW) (the 1960 Act) defined “inquest” to mean an “inquest by a coroner into the manner and cause of the death of any person”. Jurisdiction to conduct an inquest was conferred by s 11(1), using the same language: “jurisdiction … to hold an inquest into the manner and cause of the death of the deceased person”. While s 29(1) required the coroner to record findings similar to those in s 81(1) of the current Act, including as to the manner and cause of the death, there was no express power to make recommendations. However, in the absence of an express statutory power, it was accepted that the coroner or coroner’s jury could add a rider or recommendation to their finding or verdict. Although at common law such riders were not part of the finding of the coroner or the verdict of the jury, they could be recorded if their nature was concerned with avoiding repetition of a like event or circumstance: X v Deputy State Coroner for New South Wales (2001) 51 NSWLR 312; [2001] NSWSC 46 at [24]-[25] per O’Keefe J.

23. [72]

    In The Law and Practice Relating to the Examination before Coroners or Committing Magistrates, a report published by the Chief Justice’s NSW Law Reform Committee in 1964, concern was expressed that the effect of the 1960 Act might be to limit the scope of the inquiry to matters as to which the coroner was permitted or required to publish a finding. That was contrasted with the approach in fact being taken by coroners, “in inquiring in a broad way as to how, when, and where a death occurred”. The Committee said that it was desirable in the public interest that coroners should continue to inquire as they did. The Committee gave the example of a man arrested for drunkenness and found dead in a police cell as a result of a cerebral haemorrhage. The Committee said that coroners could and should inquire into the circumstances giving rise to the condition which caused the death, and ascertain whether they disclosed a preventable hazard, or errors or weaknesses in systems or in administration affecting public safety.

24. [73]

    In 1975, the New South Wales Law Reform Commission issued a report which considered the 1960 Act. The Commission recommended that the definition of “inquest” be amended to mean an “inquest by a coroner concerning the circumstances of the death of any person”, and that the words “into the manner and cause of the death of the deceased person” in s 11(1) be replaced with the words “concerning the circumstances of the death of the deceased person” (emphasis supplied). Although that form of words was not taken up by the Parliament, the underlying issue was.

25. [74]

    The Coroners Act 1980 (NSW) (the 1980 Act) introduced the language which now applies, after it was carried over into the current Act. In the Second Reading Speech to the Bill for the 1980 Act, the Attorney General said that the spirit of the Law Reform Commission’s proposals for a less restrictive form of words had been adopted in the Bill, where an inquest was defined as “an inquest concerning the death or suspected death of a person”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 February 1980 at 4556. That became the definition in s 4(1) of the 1980 Act. Section 13 then conferred jurisdiction “to hold an inquest concerning the death or suspected death” of a person in certain circumstances.

26. [75]

    The 1980 Act was amended in 1993 to confer an express statutory power in s 22A(1) to “make such recommendations as the coroner or jury considers necessary or desirable to make in relation to any matter connected with the death …” That is the language used in s 82(1) of the current Act.

27. [76]

    In the Second Reading Speech for the current Act, the Attorney General said:

28. [77]

    That legislative history confirms the following matters.

    1. (1)

       The conferral of jurisdiction using the words “an inquest concerning the death or suspected death of a person” was intended to be free of any limitation perceived in the former language of “an inquest into the manner and cause of the death of the deceased person”. That is inconsistent with a test of the outer limit of jurisdiction which turns on a causal connection.

    2. (2)

       The intention was to confer jurisdiction to enquire in a broad way as to how, when, and where a death occurred. That included the circumstances surrounding the death, in order to understand not only how but why the person died.

    3. (3)

       One purpose of the conferral of jurisdiction is preventative. This purpose includes identifying and reporting on systemic weaknesses in government services (such as health and law enforcement) in order to protect the living. That purpose is inconsistent with a test of the coroner’s authority to decide an issue that turns on a causal connection between the issue and the death. A coroner might recommend the adoption of some measure designed to increase awareness of a particular risk, being a risk connected with the person’s death. It could not be said, as a matter of common sense, that the absence of the measure was what caused the death. Yet the authority to pursue and decide the factual matters supporting the recommendation, and to decide the content of the recommendation, would be within the jurisdiction conferred by s 23(1).

    4. (4)

       The power to make recommendations is one of the coroner’s most important powers, warranting recognition as one of the main objects of the Act. That is inconsistent with the Commissioner’s submission as to the primacy of s 81(1) and its limiting effect on s 82(1).

29. [78]

    The parties made submissions by reference to a large number of cases. It is not necessary to address each of them, as none is directly dispositive of the issues on the summons. In chronological order, the five which the Commissioner urged merited particular consideration are as follows.

30. [79]

    Harmsworth v State Coroner [1989] VR 989 concerned an inquest into the deaths of five prisoners who had died in the course of a fire which one of them had lit in a high security detention unit known as K Division. The plaintiff, who was the Director-General of the Office of Corrections, sought declarations that the coroner hearing the inquest had exceeded his jurisdiction by admitting evidence of a number of matters relating to prison administration and operations. As at the date of the decision, the Coroners Act 1985 (Vic) included the following provisions:

    1. (1)

       By s 19(1), “A coroner investigating a death must find if possible” various matters, including “how death occurred”, which largely correspond with those in s 81(1) of the current New South Wales Act.

    2. (2)

       By s 19(2), “A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.”

    3. (3)

       By s 21(2), “A coroner may make recommendations to the Attorney-General on any matter connected with a death which the coroner investigated, including public health or safety or the administration of justice.”

31. [80]

    Nathan J held that a coroner did not have “general powers of enquiry or detection”; instead, the “enquiry must be relevant, in the legal sense to the death or fire, this brings into focus the concept of ‘remoteness’”: at 995. His Honour gave as an example that the “sociological factors which related to the causes of their [the prisoner’s] imprisonment could not be remotely relevant”: at 995. His Honour said that the power to comment was “not free-ranging”; it must be comment “on any matter connected with the death”: at 996. The powers to comment and to make recommendations were thus “not independent of the power to enquire into a death or fire for the purposes of making findings. They are not separate or distinct sources of power enabling a coroner to enquire for the sole or dominant reason of making comment or recommendation. It arises as a consequence of the exercise of a coroner’s prime function, that is to make ‘findings’”: at 996.

32. [81]

    Nathan J did not formulate any more particular test of remoteness. However, in the course of addressing the particulars relied upon, his Honour identified a number of topics that would be beyond jurisdiction because of a lack of sufficient connection to the mandatory “findings”. For example, his Honour said at 997 that “[i]nvestigations into the general management of the Correctional Services of Victoria either at the Coburg Complex or elsewhere relating to the classification or allocation of prisoners within the system could not be supported by an inquest directed to ascertaining the causes of death of these particular prisoners within K Division.” On the other hand, his Honour said at 998:

33. [82]

    That an investigation of the sources of frustration would be within jurisdiction is not easy to reconcile with the Commissioner’s test of remoteness, i.e., that the issue was, as a matter of common sense, a cause of the death sufficient to satisfy March v Stramare.

34. [83]

    In the result, while Harmsworth demonstrates a concern to avoid “free-ranging” enquiries which, as Nathan J said at 996, “would never end”, what it ultimately turned on was the sufficiency of the connection between the “lines of enquiry” and the deaths which were the subject of the inquest: the “enquiry must be relevant, in the legal sense to the death or fire”. But to the extent that his Honour expressed conclusions about the relationship between the power to make comments or recommendations on the one hand, and the power to make findings on the other, those must ultimately be seen as questions of statutory construction of the particular legislation.

35. [84]

    R v Doogan; Ex parte Lucas-Smith (2005) 158 ACTR 1; [2005] ACTSC 74 was concerned with a coronial enquiry into bushfires in the Canberra area. The relevant jurisdiction was conferred by s 18(1) of the Coroners Act 1997 (ACT) (the ACT Act) which as at the date of judgment was as follows:

36. [85]

    The Court held that “cause and origin” was not a hendiadys, but rather two separate concepts: at [23]. The “origin” meant the starting point of the fire; in that case, the locations of lightning strikes that ignited four fires that later converged. Their Honours acknowledged that more difficult issues arose in relation to the concept of causation, and that there may be debate about the extent to which an apparent chain of causation may be traced. Thus, “questions inevitably arise as to whether particular factors are too remote to be regarded as having been causative of the fire, as it developed, in any real sense.”: at [24]. In that context, the Court held at [29]:

37. [86]

    That appears to be the source of the Commissioner’s test of remoteness. But it is clear that that test was specifically directed to a conferral of jurisdiction expressed in terms of “an inquiry into the cause … of a fire”. That is very far from the conferral of jurisdiction in s 23(1) of the current New South Wales Act, which is expressed in terms of “an inquest concerning the death”.

38. [87]

    It should also be noted that the Court held at [37] that s 52(2) of the ACT Act, which provided that “a coroner holding an inquiry shall find, if possible … (b) the circumstances in which the fire or disaster occurred” did not expand the jurisdiction conferred by s 18(1). Instead, it was held at [37] that “[t]he section only requires the coroner to make such findings to the extent permitted by the evidence adduced at the inquiry conducted under s 18(1), seen as relevant in the legal sense, to the ‘cause and origin of the fire’.” By contrast, again, the terms of the conferral of jurisdiction in s 23(1) of the current New South Wales Act are limited only by the words “concerning the death”. For the reasons given above, the interpretation of that word is aided by the other provisions of the Act, including the powers to make s 81(1) findings and s 82(1) recommendations.

39. [88]

    In the result, Doogan is of very limited assistance in construing s 23(1) of the current New South Wales Act. Indeed, the Court in that case was itself astute to point out the limited value of judicial decisions concerning the scope of coronial enquiries conducted under different legislation which might be broader in scope: see at [32].

40. [89]

    In Re State Coroner; Ex parte Minister for Health (2009) 38 WAR 553; [2009] WASCA 165, the inquest in question was into the death of a man who had been shot and killed as a result of attacking a police officer with a knife while the officer was attempting to apprehend him. The deceased had suffered from a serious mental illness which had become progressively worse, including by developing more psychotic features. The State Coroner gave a report that made a number of statements about the deceased’s medical treatment and the likelihood that the events that resulted in his death would not have taken place had the treatment he received been different: see at [16].

41. [90]

    The issue was not as to the scope of the provisions conferring jurisdiction on the coroner. (Those provisions were in any event very different in form from those in New South Wales. It appears from the Court’s reasons at [8]-[9] that as at the time of the judgment, s 19(1) of the Coroners Act 1996 (WA) (the WA Act) conferred jurisdiction on the coroner to investigate a death in certain circumstances. Section 22(1) provided that a coroner who had jurisdiction to investigate a death must hold an inquest where, among other things, it appeared that the death was caused, or contributed to, by any action of a member of the Police Force.)

42. [91]

    Instead, the issue arose under s 52(1) of the WA Act, which provided: “Any person may apply to the Supreme Court for an order that some or all of the findings of an inquest are void.” Section 52(3) identified various grounds on which such an order could be made. (It may be noted that there is no provision in the New South Wales Act corresponding directly to s 52 of the WA Act. Instead, s 85 of the New South Wales Act provides: “The Supreme Court may, on the application of the Minister or any other person, make an order that an inquest or inquiry that has been (or that has purportedly been) held be quashed and that a new inquest or inquiry be held if the Court is satisfied that it is necessary or desirable to do so in the interests of justice because of—”, and there follow various grounds.)

43. [92]

    A central question was identifying the “findings” to which s 52(1) applied. As at the date of judgment, s 25 of the WA Act relevantly provided as follows:

44. [93]

    (It might be noted that the language of s 25(1) differs significantly from s 81(1) of the current New South Wales Act.)

45. [94]

    Buss JA (Martin CJ and Miller JA agreeing) described the findings referred to in s 25(1) as the “ultimate findings”: at [28]. His Honour held that the “findings” to which s 52 referred were the ultimate findings in s 25(1): at [52]-[53]. His Honour relied on authority under the corresponding provisions of the Coroners Act 1985 (Vic), on the footing that as at the date of judgment, s 25(1)(a)-(d) were relevantly identical to the Victorian s 19(1)(a)-(d), and s 52 of the WA Act was equivalent to the Victorian s 59: see at [25] and [51].

46. [95]

    Although s 25(1) was not expressed in the language of “jurisdiction”, Buss JA held at [52] that s 25(1):

47. [96]

    Given the different language, structure and legislative history of the current New South Wales Act, it should not be held, by way of analogy or otherwise, that the ultimate findings made pursuant to the power in s 81(1) of the New South Wales Act circumscribe either the conferral of jurisdiction in s 23(1) or the matters “connected with the death” in respect of which the coroner may make recommendations pursuant to the power in s 82(1). The coroner’s role under s 82(1) is not in that sense “ancillary to” the role under s 81(1).

48. [97]

    It is worth noting that Buss JA accepted that the coroner may make many findings “in the sense that he or she takes a view of the evidence or particular aspects of it”, but his Honour said that those were not the “findings” referred to in ss 25(1) and 52: at [53]. That is necessarily an acknowledgement that the conferral of authority on the coroner to decide the matters identified in s 25(1) extended to authority to decide anterior issues for the purpose of making the ultimate findings.

49. [98]

    The need to identify the “findings” which could be declared void pursuant to s 52 of the WA Act led to a close analysis of the scope of the s 25(1) “ultimate findings”. One of these was the requirement in s 25(1)(b) to find, if possible, “how death occurred”. After a review (at [32]-[41]) of authorities including those in Victoria and Queensland (where the Act was also based on the Victorian legislation: at [37]), Buss JA concluded at [42]:

50. [99]

    Another “ultimate finding” was the one in s 25(1)(c): “the cause of death”. Buss JA did not take a narrow view of the cause of death. Quoting the decision of Lander J (Mullighan J agreeing) in WRB Transport v Chivell [1998] SASC 7002, his Honour said at [45]:

51. [100]

    Citing Doogan, his Honour said at [46] that s 25(1)(c) does not, however, authorise a coroner to undertake a roving Royal Commission for the purpose of inquiring into any possible causal connection, no matter how tenuous, between an act, omission or circumstance and the death of the deceased. Citing, among other authorities, March v Stramare, Buss JA said at [47]:

52. [101]

    Several matters may be observed. First, what Buss JA said about the common sense test of causation was specifically in relation to par (c): “the cause of death”. It was not directed to, for example, the scope of par (b): “how death occurred”. His Honour had already construed par (b) broadly as extending to the circumstances attending the death, expressly distinguishing it from “the cause of death”: at [41]-[42]. Secondly, even in respect of the “cause of death”, his Honour contemplated that as a matter of common sense, in some circumstances “facts less proximate in time” might be seen as a cause of the death. Thirdly, his Honour acknowledged that part of the coroner’s function in each inquest would be to “delineate”, that is to identify, the matters that might be characterised as “at least potentially” causing death.

53. [102]

    One final matter should be noted. Buss JA held at [48] that a statement that a particular act, omission or circumstance did not cause the deceased’s death is not a finding as to “the cause of death”. (See Hurley v Clements [2010] 1 Qd R 215; [2009] QCA 167 at [23]; Keown v Khan [1999] 1 VR 69 at [13] per Callaway JA (Ormiston and Batt JJA agreeing).) That conclusion must be understood in the context of the issue arising under s 52 of the WA Act (which conferred a power to order that some or all of the findings of an inquest were void). It is not necessary to decide whether the same view would be taken under the New South Wales Act, which has no equivalent provision.

54. [103]

    The issue to be determined by Barr AJ was very different from the one in the present case. The Deputy State Coroner had dispensed with an inquest into the death of a girl, referred to as M, who was aged 16 years and five months: at [3]-[4]. M had died from head injuries suffered when the stolen car in which she was a passenger crashed. The plaintiff, who was M’s mother, applied pursuant to s 84 of the current Act for an order that an inquest concerning the death of M be held. The statutory question was whether the court was “satisfied that it is necessary or desirable to do so in the interests of justice”. In the course of submissions ultimately directed to that issue, counsel for the plaintiff accepted that it was neither necessary nor desirable to have an inquest to establish the identity of the deceased, the time and place of her death or the cause of her death: at [40]. Instead, it was submitted that an inquest should be held to determine the “manner” of M’s death, giving that word in the expression “manner and cause of death” a liberal construction.

55. [104]

    After considering a number of decided cases, Barr AJ concluded that the phrase “manner of death” should be given “a broad construction so as to enable the coroner to consider by what means and in what circumstances the death occurred”: at [52]. His Honour said that there were nevertheless limits to the coroner’s jurisdiction. His Honour referred to general statements in Harmsworth, Re State Coroner and Doogan. At [56], his Honour said that in Doogan, the Full Court of the Australian Capital Territory Supreme Court had referred to a line that it was necessary to draw, at some point beyond which, even if relevant, “factors which came to light would be considered too remote to be regarded causative”. His Honour did not elaborate on the word “causative”. As noted above, what was said on this point in Doogan was specifically directed to a conferral of jurisdiction expressed in terms of “an inquiry into the cause … of a fire”, which is very different from the conferral of jurisdiction in s 23(1) of the New South Wales Act (“an inquest concerning the death”).

56. [105]

    Barr AJ summarised the plaintiff’s submission as to the reasons requiring the holding of an inquest at [59] as:

57. [106]

    His Honour dismissed the summons. At [61], he said:

58. [107]

    It is important to understand that, in light of what had been accepted by counsel for the plaintiff, the only asserted purpose of ordering that an inquest be held would be in order to determine the “manner” of M’s death. Hence his Honour’s reference to the only “question that a coroner would have to ask” (the coroner’s power to make recommendations being discretionary). Unsurprisingly, that issue was his Honour’s focus when considering whether to exercise the s 84 power. What his Honour said in that context about the matters to which the plaintiff pointed being “too remote” was not stating a test of jurisdiction generally; it was addressed to the issue at hand. Even then, his Honour did not express the test of remoteness in terms of causation.

59. [108]

    As to the power to make recommendations in s 82, his Honour said at [63]:

60. [109]

    In the result, Barr AJ’s decision (1) supports a broad construction of “manner and cause”; (2) supports the view that the recommendations power is consistent with the conferral of jurisdiction to consider and decide matters beyond those necessary to determine the manner and cause of death; and (3) understood in its context does not support the Commissioner’s submission as to a causational test of the outer limit of jurisdiction.

61. [110]

    Ms Conway then sought leave to appeal. Leave was refused, with reasons given ex tempore by Campbell and Young JJA. What their Honours said must be understood as arising in the same context that had confronted Barr AJ at first instance (that is, a challenge to the coroner’s decision not to hold an inquest). It is also subject to the limitations on the use that may be made of what is said in refusing leave to appeal.

62. [111]

    Campbell JA summarised the provisions of the current Act at [12]-[21]. At [22], his Honour said “It will be seen from the foregoing summary of the Act, that the scope of the enquiry of the coronial inquest concerning a death, is limited to the matters identified in s 81.” That was not the issue to be decided in the case and, even as far as that statement went, it did not explore the limit of “the matters identified in s 81”. Moreover, his Honour had not referred to s 82 at all at that point. His Honour only did so at [42], in the context of saying that there were insufficient prospects that the primary judge’s view (that before the power to make s 82 recommendations became exercisable, there first had to be proper grounds for holding an inquest) would be held incorrect to justify leave to appeal being granted.

63. [112]

    Young JA agreed with Campbell JA and gave additional reasons, with which Campbell JA also agreed at [52]. Young JA made the following points at [47]-[50].

    1. (1)

       The scope of an inquest depends on all the circumstances and is a matter for the coroner, to be exercised using discretion and commonsense.

    2. (2)

       The primary purpose of an inquest is to determine “who is the deceased, [and] when and how he or she died”, citing O’Keefe J’s statement of the “primary duty” of the coroner (in terms that paraphrase s 81(1)) in X v Deputy State Coroner at [60].

    3. (3)

       “It is important that extraneous factors do not get in the way of that primary duty.” “As the ACT Full Supreme Court said in … Doogan [at] [28] … the coroner is not to conduct ‘a wide ranging inquiry akin to that of a Royal Commission, with a view to exploring any suggestion of a causal link, however tenuous, between some act, omission or circumstance and the cause’, in that case, of a fire.” “In the usual cases of death, a line must be drawn at some point beyond which, even if relevant, factors which come to light will be considered too remote from the event”, that is, from the death.

64. [113]

    Young JA's first point identified above was directed to the coroner's broad discretion to identify issues within jurisdiction. His Honour's third point acknowledged the practical reasons why there must be an outer limit to the coroner’s jurisdiction, which his Honour conceived in terms of remoteness from the death. But his Honour did not give a criterion of remoteness. In particular, his Honour did not say that the scope of the “primary duty” to which he had referred confined the coroner’s authority to decide.

65. [114]

    The five decisions discussed above largely support taking a broad approach to concepts of “manner” or circumstances of death, particularly where the death occurs in an institutional setting where the operation (or failure) of systems or practices may have been one of the important circumstances surrounding the death.

66. [115]

    One matter that all the authorities, both within and outside New South Wales, agree upon is the need for practical common sense limits to the matters the coroner is authorised to pursue and decide. Whatever the formulation in the particular case, each turns on the sufficiency of the connection between the issues to be pursued and decided and the death which is the subject of the inquest.

67. [116]

    When the statements on which the Commissioner particularly relies in the five decisions are read in context, they do not support common sense causation as the test of the outer limits of the jurisdiction conferred by s 23(1) of the current New South Wales Act. Even within the significantly different legislative contexts of the three interstate decisions, the common sense test of causation should be seen, as in Re State Coroner, as directed only to some aspects of the coroner’s authority to decide.

68. [117]

    Within their own legislative contexts, the authorities outside New South Wales do suggest that the scope of statutory powers to make comments or recommendations may be confined by the subject-matters of the statutory powers to make ultimate findings (see also the observations in Conway CA at [22]). While I have concluded that that approach to the relationship between ss 81(1) and 82(1) is not supported by the language, purpose or legislative history of the New South Wales Act, that may make little difference in practice. That is because of:

    1. (1)

       the scope of the circumstances falling within the s 81(1) power to make findings (in particular, as to “the manner and cause of the person’s death”); and

    2. (2)

       the fact that the s 82(1) power to make recommendations is subject to two significant constraints, namely, (a) that the “matter” must be “connected with the death” (s 82(1)), and (b) that the inquest must be “concerning the death” (s 23(1), as to which, see below).

Conclusion as to test of jurisdiction: Grounds 2 and 4

1. [118]

   The scope of the matters falling within a coroner’s authority to decide depends on the interpretation of the words “jurisdiction to hold an inquest concerning the death or suspected death of a person” in s 23(1).

2. [119]

   For the reasons given above, the s 23(1) “jurisdiction to hold an inquest” extends to the authority to pursue and decide matters including the following:

   1. (1)

      The factual matters forming the basis of the ultimate findings in s 81(1), bearing in mind that the words “the manner and cause of the person’s death” in s 81(1)(c) extend beyond the cause of death and include the circumstances surrounding the death.

   2. (2)

      Whether it is necessary or desirable to exercise the discretionary power in s 82(1) to make any recommendation and, if so, its factual basis and content, bearing in mind that the recommendation may be “in relation to any matter connected with the death”.

   3. (3)

      Any factual matters properly identified by the coroner for the purpose of exercising the powers or performing the duties of a coroner holding an inquest. These include anterior findings for the purpose of making the ultimate findings in s 81(1) or exercising the s 82(1) discretion to make recommendations.

3. [120]

   Also for the reasons given above, the Commissioner’s causal test of remoteness should not be accepted as the test of the limit of the coroner’s jurisdiction. It follows that Ground 2 is not made out: the Coroner made no error in failing to apply such a test. To the extent that Ground 4 was advanced as a constructional reason in support of the test identified in Ground 2, Ground 4 is also not made out.

4. [121]

   However, the words “concerning the death … of a person” are words of limitation. They confine the scope of the jurisdiction that s 23(1) confers on the coroner. Those words are echoed in both s 81(1) (“The coroner holding an inquest concerning the death … of a person must …”) and s 82(1) (“… in relation to any matter connected with the death … with which an inquest … is concerned”).

5. [122]

   Those words require a sufficient connection between the person’s death and the matters to be decided in the course of the inquest: the inquest must meet the description of an inquest concerning the death of the person. Whether a matter is within a coroner’s authority to decide thus involves a question of characterisation of the inquest. At some point the connection between the death the subject of the inquest and the matters a coroner proposes to pursue and decide, or has purported to decide, may become so tenuous or remote that, to that extent, the inquest can no longer be fairly characterised as “concerning the death … of [the] person”. The process of characterisation must be undertaken bearing in mind the nature and scope of the connections to the death contemplated by s 81(1) (in particular, as to “the manner and cause of” death) and s 82(1) (in particular, “any matter connected with the death”). The process of characterisation no doubt involves the application of common sense, but it does not involve a necessary test of causation.

6. [123]

   I do not consider it possible to elaborate any more particular test of the limit of the conferral of jurisdiction, which would in any event likely amount to a gloss on the words “an inquest concerning the death”.

7. [124]

   Mr Jones, who appeared with Ms Dargan on behalf of Ms Vicki Shipley, proposed two alternative formulations of what he called the “nature of the required link”, as follows (Tcpt, 25 July 2025, 28.6-17):

   1. (1)

      “that the matters under investigation be concerned with or relevant to the assessment of the circumstances of the death”; or

   2. (2)

      “that the matter under investigation may potentially be characterised as part of the circumstances of the death”.

8. [125]

   He said that the words “matters under investigation” were directed to capturing, in the present case, the actions of the police: at 28.32. Those words could be understood more generally to mean any factual question that a coroner was pursuing or proposing to decide.

9. [126]

   Neither formulation finds a direct footing in the text of s 23(1) itself. Both refer to “the circumstances of the death”, which is not the statutory language, but rather a product of the interpretation of, in particular, s 81(1)(c). Also, although Mr Jones submitted that the two formulations were of similar effect, that may not necessarily be so. The second formulation (“part of the circumstances of the death”) goes to the process of fact-finding for the purpose of s 81(1)(c). Depending on the meaning of “assessment”, the first formulation (“relevant to the assessment of the circumstances of the death”) might go either to that same process of fact-finding for the purpose of s 81(1)(c), or perhaps to the question whether to make a recommendation for the purpose of s 82(1).

10. [127]

    Nevertheless, it suffices for present purposes to say that to the extent that a factual matter came within either formulation, the inquest would most likely be fairly characterised as “concerning the death … of [the] person”, and so the particular matter would be within the coroner’s authority to decide. But the converse is not necessarily so. In other words, I do not consider either formulation to be a test of remoteness which, if not satisfied with respect to a particular issue, would necessarily result in the coroner’s lacking authority to decide the issue.

This case: Ground 1

1. [128]

   Ground 1 in the summons is:

2. [129]

   The matters which the Coroner has indicated that she proposes to pursue and decide in the course of the inquest, referred to at D[138]-[142] and D[150], bear a sufficiently close connection to Ms Shipley’s death that the inquest would be fairly characterised as “concerning” her death. Those matters are within jurisdiction.

3. [130]

   The mandatory s 81(1) findings include “the manner and cause of” Ms Shipley’s death. That extends to the circumstances surrounding her death. The Coroner said at D[150] that it appears that “Ms Shipley was extremely mentally unwell when she left NSWPF custody and entered into the custody of CSNSW on 9 December 2022, and she remained mentally unwell until her death 11 days later.” Her Honour said at D[138] that Ms Shipley “died in the MSU at SWCC, ostensibly from complications arising from her mental illness”. The Coroner also said at D[141(c)] that that occurred “in circumstances where (according [to] the expert panel of psychiatrists) she could not get adequate treatment for her mental health condition and died as a result of it.”

4. [131]

   In light of those matters, the fact that Ms Shipley was in custody when she died is undoubtedly one of the circumstances surrounding her death. The circumstances in which Ms Shipley came to be, and to remain, in custody while mentally unwell in the days preceding her death, although approaching the limit of the matters that are within the Coroner’s s 23(1) authority to decide, bear a sufficient relation to her death that an inquest pursuing lines of enquiry into those circumstances in the limited manner the Coroner proposes is fairly to be characterised as an inquest concerning Ms Shipley’s death. The pursuit of the lines of enquiry referred to at D[138]-[142] and [150] would not be arbitrary or capricious. Nor is there a basis to conclude that the Coroner proposes to pursue those matters for a purpose other than the purpose of performing the Coroner’s functions in holding an inquest (such as exercising the s 81(1)(c) power to make findings as to the manner and cause of Ms Shipley’s death or the s 82(1) power to make a recommendation in relation to a matter connected with her death). Nor would pursuit of those matters in the limited manner the Coroner proposes otherwise mean that the inquest was not fairly characterised as “concerning” Ms Shipley’s death. The jurisdiction conferred on the Coroner by s 23(1) extends to authority to decide matters emerging from those lines of enquiry.

5. [132]

   Ground 1(b) in the summons is to the effect that “the NSW Police Force’s institutional frameworks for dealing with persons suffering from mental illness” are beyond the Coroner’s jurisdiction. Expressed at that level of generality, the Commissioner’s contention has some force. If the Coroner were proposing a general investigation of that subject, untethered from the circumstances of Ms Shipley’s death, the inquest would cease to be one “concerning” her death. The same might be true of a general investigation, unlimited as to period or as to connection with her death, into “the NSW Police Force’s interactions with Ms Shipley” (Ground 1(a)). But I do not understand the Coroner to be proposing any such general investigations. Instead, I understand the Coroner to be proposing to examine the NSWPF’s dealings with Ms Shipley (including how she came to be and to remain in custody notwithstanding being mentally unwell) in the period 9 to 14 December 2022, and certain “policies or procedures” of the NSWPF insofar as they might have been specifically relevant to those dealings. Those matters are not so remote from Ms Shipley’s death as to exceed the Coroner’s jurisdiction. The inquest is still one “concerning” her death.

6. [133]

   It follows that Ground 1 is also not made out.

Orders

1. [134]

   In accordance with an agreement reached among the active parties, there should be no order as to costs.

2. [135]

   None of the three grounds pressed in the summons is made out. The order of the Court is:

   1. (1)

      The summons is dismissed.