Brighton v The State Coroner [2013] QDC 145

DISTRICT COURT OF QUEENSLAND CITATION: Brighton v The State Coroner [2013] QDC 145 PARTIES: JANET BEATRICE BRIGHTON (Applicant) v THE STATE CORONER (Respondent) FILE NO/S: Rockhampton 38/13 DIVISION: Civil PROCEEDING: Originating Application ORIGINATING COURT: Rockhampton DELIVERED ON: 2 July 2013 DELIVERED AT: Brisbane HEARING DATE: 21 June 2013 JUDGE: Smith DCJ ORDER: Order that an inquest be held into the death of Connon Kenneth Press CATCHWORDS: Coroners Act 2003 - Application for order for inquest to be held Coroner’s Act 2003 (Q) ss 28, 30 O’Sullivan v Farrer (1989) 168 CLR 210 Gentner v Barnes [2009] QDC 307 Lockwood v Barnes [2011] QDC 84 COUNSEL: Ms. Brighton self-represented L. Reibelt for the respondent SOLICITORS: Applicant - self-represented Respondent - Crown Solicitor Introduction [1] This is an application by Ms Brighton for an order that an inquest be held into the death of Connon Kenneth Press, who died at 3 Bridge Street, Mount Morgan, on 28 April 2012. -- 1 of 9 -- 2 [2] The application is pursuant to s 30(6) of the Coroners Act 2003 (Q) (―the Act‖). [3] Section 30 of the Act provides: ―30 Applying for inquest to be held (1) A person may apply to the coroner investigating a person's death to hold an inquest into the death. (2) The application must— (a) be written; and (b) outline why the applicant considers it is in the public interest for an inquest to be held. (3) The coroner must, within the prescribed period, decide the application and give written reasons for the decision to— (a) the applicant; and (b) if the coroner is not the State Coroner—the State Coroner. (4) If the coroner decides not to hold an inquest, the person may apply for an order that an inquest be held to— (a) if the coroner is not the State Coroner—the State Coroner; or (b) if the coroner is the State Coroner—the District Court. (5) The application must be made within 14 days after the person receives the written reasons for the coroner's decision. (6) If the State Coroner refuses an application, the person may apply to the District Court. (7) The application must be made within 14 days after the person receives the written reasons for the State Coroner's decision. (8) The State Coroner or District Court may order that an inquest be held if satisfied it is in the public interest to hold the inquest.‖ Submissions [4] The Applicant has provided written submissions concerning this matter. She submits the following: (a) inconsistencies have appeared throughout the investigation; (b) there is evidence that persons in the house removed the body of the deceased along with the gun prior to the police attending; (c) no police officer notified her of her son‘s death nor discussed any aspect of his well-being or aspects of his life leading up to the day which could have contributed to what had occurred; (d) the deceased had not used drugs for three weeks prior to his death; -- 2 of 9 -- 3 (e) the police assumed suicide had occurred before any investigation; (f) the body and gun were removed from the primary crime scene before police arrived; (g) the police have only interviewed Ms Amanda Marsh and Ms Kara Hare. No tests were done on either woman for gunshot powder residue or drugs. [5] In conclusion, she submits that the death of her son has not been investigated fully or thoroughly. [6] The Crown Solicitor has appeared on behalf of the State Coroner. The Crown Solicitor‘s position is the Respondent will abide the order of the court. The Respondent reserves the right to be heard on the questions of costs, allegations of misconduct, bias or other allegations not relating to the final decision in the matter the subject of review. It is submitted that no order as to costs should be made against the respondent. [7] The Respondent has not filed any material which contradicts that filed by the Applicant. Background [8] The deceased was born on 11 August 1978. He died at Mount Morgan on 28 April 2012. [9] Dr Nigel Buxton provided an autopsy report dated 20 September 2012. His report noted the following: (a) There was a circular gunshot wound on the right temple. There was a grey shadow around the wound consistent with a muzzle imprint which was measured 25mm in diameter. (b) Reflection of the scalp revealed extensive bruising into the scalp and a .22 calibre projectile was trapped. (c) No other skull fractures were noted. (d) Extensive brain destruction was noted. (e) Methylamphetamine results from the toxicology disclosed 3.1mg/kg in his system. (f) No alcohol was detected. (g) In summary Dr Buxton noted ―Death in this patient is due to close contact gunshot wound to the head. The calibre of the projectile is .22 inch. The position of the entry gunshot wound is entirely consistent with a suicidally inflicted shot. There was no evidence that a second person played a physical role in this man‘s death.‖ (h) The cause of death was noted as ―gunshot wound to head.‖ [10] The central coroner provided findings in a notice of completion of coronial investigation dated 5 March 2013. Following are the important findings: (a) At the time of death, the deceased resided at 3 Bridge Street, Mount Morgan. He was 33 years of age and lived in a de facto relationship with Amanda Marsh. (b) His medical history included his suffering from bipolar disorder and schizophrenia. He was also diagnosed with hepatitis C. He had a history of substance abuse. -- 3 of 9 -- 4 (c) He took a number of prescription medications including Ritalin, Prozac and Fluoxetine (which had been changed from Risperidone approximately 10 days prior to death). (d) The deceased attended the Mount Morgan Hospital daily to receive medication. (e) He was said to be right-handed. (f) At around 10 a.m. on 28 April 2012 the deceased was at his residence with Ms Marsh, their two children and a friend Kara Hare, who was the girlfriend of the deceased‘s brother. The deceased had taken prescription medications to control his mental health issues but also had consumed an unknown quantity of speed. There was no suggestion that he did not willingly take the narcotic. The narcotic had an effect on him such that he was unable to sleep for a continuous period of about 48 hours. Information provided to the police was that on the morning of 28 April 2012 he had become increasingly more erratic. This included paranoid behaviour. (g) The deceased and Ms Marsh became involved in a verbal argument. Kara Hare removed herself from this and went into a guest bathroom. At about 10.20 a.m. the deceased retrieved a firearm and asked Ms Marsh, ―Do you think this works?‖ Ms Marsh observed the deceased place the muzzle of the firearm to the right side of his head and he pulled the trigger, and he fell onto the TV cabinet where his head broke glass panelling in front of the cabinet. (h) Ms Marsh then ran into the guest bedroom to alert Kara Hare. Ms Hare rolled the deceased onto his side in an attempt to stop the bleeding. Ms Hare removed the weapon from near him and placed it away from him. Ms Hare provided CPR. Ms Marsh called Triple O. A nurse from the hospital and ambulance officers arrived. (i) The deceased was then transported to the Mount Morgan Hospital and it was determined he had passed away. (j) It is said the police conducted extensive investigations and inquiries, and no-one including neighbours heard any gunshot noise whether a single shot or multiple rounds. (k) The police determined that both witnesses in the house corroborated each other and were credible. (l) The deceased had a small circular mark consistent with a gunshot burn on the right side of the head. (m) There is no evidence that any other person touched the firearm other than Ms Hare and the nurse who attended the scene. (n) The next door neighbour did not hear any significant disturbance that morning nor any gunshot sound. (o) The coroner noted that the level of 3.10mg/kg of methylamphetamine was an exceedingly high concentration, well above the usual range and would be associated with poor concentration, confusion, anxiety and restlessness. It was opined it was likely the deceased was a regular user of methylamphetamine and may have become tolerant to the effects of the drug. (p) With respect to other drugs present the coroner found that, as he suffered from bipolar disorder and schizophrenia, the medications for those conditions and their levels were appropriate. -- 4 of 9 -- 5 (q) The coroner noted that schizophrenia can produce paranoid ideations and auditory hallucinations. Chronic abuse of methylamphetamine could also do this. (r) The coroner noted that concerns were expressed by people during the investigation. These included whether there was more than one gunshot sound that morning. Police were tasked to investigate this issue but their investigations revealed no person in the vicinity of the residents heard multiple gunshots. (s) The coroner found: ―Accordingly, in consideration of all the circumstances and documented reliable information I find that Mr Press died due to a gunshot wound to the head. I find that there is no evidence that a second person played a physical role in Mr Press‘ death. In the circumstances and in consideration of the documented reliable information available to me, I find Mr Press intentionally committed suicide by a single, self- inflicted gunshot wound to the head whilst affected by this drug.‖ [11] The applicant applied to the State Coroner for an inquest. On 23 April 2013 the Acting State Coroner declined her request. The Acting State Coroner found: (a) She applied the criteria in s 28 of the Act, namely whether it was in the public interest an inquest be convened. (b) A coroner is directed by s 28(2) of the Act to consider the extent to which the drawing attention to the circumstances of the death may prevent deaths in similar circumstances happening in the future. (c) There is no doubt as to the identification of the deceased‘s body. (d) The doctor did not see any signs of the deceased‘s cardiac surgery which had been performed about 30 years prior. (e) The coroner noted that there was a blood methylamphetamine reading of 3.10mg/kg, which was likely to cause disordered thinking with paranoid ideations. (f) The gunshot wound on the right temporal region is a classic type. There was only one track of damage through the brain, and the bullet exited through the left temporal bone. This was consistent with a low velocity projectile from the handgun. (g) There was no evidence of a second bullet. The remnants of only one bullet were identified. .22 calibre projectiles break up and are unsuitable for ballistic examination. (h) Having reviewed all of the documentation, the State Coroner did not consider there was sufficient public interest to convene an inquest. There was no doubt about the medical cause of death and there was not sufficient doubt as to how the death occurred. The applicant’s material [12] The applicant relies on a number of affidavits. The applicant, in her affidavit sworn 14 June 2013, says: (a) On 28 April 2012 she viewed her son‘s body at the Mount Morgan Hospital, and he was wearing different clothing to that which was noted in the autopsy report. -- 5 of 9 -- 6 (b) The deceased had open heart surgery when he was about three years and nine months old, with a scar being visible over the full length of the sternum. The autopsy report did not note such a scar. (c) The deceased smoked cigarettes on and off since he was 12, and smoked cannabis daily, and drank XXXX beer daily, and would be very surprised if this was not in his system at the time of death. (d) She alleges Amanda Marsh removed a packet of cannabis from his body shortly after his death. (e) She says that she does not understand how there was such a high level of methylamphetamine in his body, because the last time he had used speed was three weeks prior to his death. (f) She said that Amanda Marsh threatened to kill her over visiting her grandchildren. This was at a time when the deceased decided to leave Amanda Marsh with his two children. (g) The autopsy report noted the deceased‘s liver was healthy, yet he was suffering from hepatitis C. (h) The autopsy report noted that the genito-urinary system was normal, although the deceased had piercings in that area. (i) There were no gunshot powder residue tests conducted on the deceased‘s hands or body. (j) It seemed to the Applicant that there could have been a second shot in the same place as the first shot. (k) She alleges numerous people heard two gunshots, which fact was reported to the Mount Morgan Police and they had not been contacted regarding this information. (l) She does not know how the deceased could have shot himself through the right temporal region when he was left-hand dominant. (m) The autopsy was carried out five days after death, which was a long time. (n) The gun was removed by Amanda Marsh before the police arrived. (o) The body was removed before police arrived. (p) Insufficient police resources were given to the matter, as it was polling day. (q) The two adults at the scene, Amanda Marsh and Kara Hare, were not tested for gunshot powder residue. (r) Amanda Marsh and Kara Hare left the house at the time of the incident before the police arrived, showered at someone else‘s house and changed their clothes. (s) The applicant had informed the police that Amanda Marsh had threatened her three weeks prior on Easter Saturday. (t) The police had refused to interview her or take a statement from her. (u) Allegations that the deceased was paranoid was entirely inconsistent with his previous behaviour. (v) She does not believe the police have spoken to many neighbours, as a number of them have informed her they had heard two gunshots quite clearly. (w) She says the deceased was in good spirits when she visited him not long before the death. [13] Arian Press has provided an affidavit sworn 3 June 2013. He says that on 28 April 2012 he spoke to Kara Hare on the phone and heard a female ask if ―that was the -- 6 of 9 -- 7 weapon‖, and Amanda Marsh answered, ―Yes.‖ The female then asked Amanda to hand it to her. He also says that the deceased was left-handed except for writing. [14] Albert O‘Neill, the youngest brother of the deceased, alleges in his affidavit sworn 3 June 2013 that the deceased suffered verbal abuse, mental harassment and threats from Amanda. He also alleges that the deceased was left-handed except for writing. [15] Lisa Gooding, in her affidavit sworn 11 June 2013, confirms that the deceased was left-handed. She also confirms that Amanda Marsh was a speed user and the deceased would tell her to stop taking drugs for the baby‘s sake. The deceased called her about a week before he died and asked if she could put he and the two kids up because he was leaving Amanda. [16] Leigh Peter Mitchell, in an affidavit sworn 11 June 2013, alleges that he heard two shots on 28 April 2012 as did two others – Aaron Mitchell and Gail Russell. This fact was reported to the Mount Morgan Police. [17] In a statement, Gail Russell alleges that she heard two gunshots. The first one was followed by a second shot a few seconds later. There was only a slight pause between the two shots. Discussion [18] The phrase ―in the public interest‖ has been considered judicially on other occasions. [19] In O’Sullivan v Farrer (1989) 168 CLR 210, at 216 Mason CJ, Brennan, Dawson and Gaudron JJ said: ―… the expression ‗in the public interest‘, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‗in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view‘.‖ [20] Section 30 of the Act has been considered in a number of cases. For example, in Gentner v Barnes [2009] QDC 307, Robertson DCJ ordered that an inquest be held where a motorcyclist died in a motor vehicle accident and it was asserted by the deceased‘s family that the cause of the accident was loose gravel on the roadway due to drilling on the roadway the day before the accident, rather than excessive speed and/or inexperience as determined by the investigating police. [21] In Lockwood v Barnes [2011] QDC 84, Dorney QC DCJ declined to order an inquest where, even though there was a medical report critical of treatment given to an infant child at the Mater Hospital, the available medical reports did not suggest a different outcome would have been achieved by a different medical approach. [22] In my view, bearing in mind the following issues: (a) the fact that two witnesses allege that there were two shots fired; (b) there seems to have been no gunshot powder residue tests conducted; (c) the fact it is alleged that the deceased was predominantly left handed it seems to me that it is in the public interest to hold an inquest here. -- 7 of 9 -- 8 [23] It appears to me to be in the public interest for a coroner to inquire whether in this case the investigation by the police was an adequate one. [24] I do not express any concluded view on this question as that will be a matter for evidence to be lead at the inquest. But in my view the matter should be inquired into. [25] I note that 2012 Coroner‘s guidelines which pickup the 2003 guidelines provide as to the holding of inquests. These are relevant under s 28 of the Act which provides: ―28 When inquest may be held (1) An inquest may be held into a reportable death if the coroner investigating the death is satisfied it is in the public interest to hold the inquest. (2) In deciding whether it is in the public interest to hold an inquest, the coroner may consider— (a) the extent to which drawing attention to the circumstances of the death may prevent deaths in similar circumstances happening in the future; and (b) any guidelines issued by the State Coroner about the issues that may be relevant for deciding whether to hold an inquest for particular types of deaths.‖ [26] The relevant guidelines provide inter alia: ―Chapter 9 An inquest must also be held if consideration of the investigation report and any other evidence does not enable the Coroner to make the findings required by s45 to the required standard of proof (see section 7.8 of these guidelines for discussion of this standard) The discretion to hold an inquest should be exercised with reference to the purposes of the Act and with regard to the superior fact finding characteristics of an inquest compared to the fault attributing role of criminal and civil trials. The wide scope of the investigation as outlined in section 6.1 of these guidelines should also be considered as should a family‘s right to know the circumstances of their relative‘s demise. It may be entirely appropriate to hold an inquest even if the medical cause of death can be established with out [sic] one and no family member is insisting on one being held. These considerations do not allow the compiling of an exhaustive list of the circumstances in which inquest should be held but assist in identifying the following categories of cases in which an inquest should usually be held:- • Any death where there is such uncertainly or conflict of evidence as to justify the use of the judicial forensic process -- 8 of 9 -- 9 • Any death in which there is a likelihood that an inquest will uncover important systemic defects or risks not already known about • Any deaths in which the views of the family or other significant members of the public are such that an inquest is likely to assist maintain public confidence in the administration of justice, health services or other public agencies • Any death that when grouped with others that have occurred in similar circumstances indicates that there may be an unexpected increase in danger in a particular location, area, family, industry or activity • Any workplace death in which industrial processes or activity is implicated • Any disasters involving multiple deaths • Any death from self harm in which it is not possible to exclude the involvement of a third partying [sic] procuring the death or in failing to prevent it.‖ [27] It appears to me that a number of matters in the guidelines are applicable in this case namely: (a) the family‘s right to know of the circumstances of the demise; (b) issues of confidence in the police investigation; and (c) the possibility of 3rd party involvement in the death. [28] In the circumstances, pursuant to s 30(8) of the Coroners Act 2003, I am satisfied it is in the public interest to hold an inquest into the death of the deceased and I so order. [29] I will hear the parties on the question of costs. -- 9 of 9 --