The human cost of appeals and the limits of judicial review

Last week, Justice Ross handed down his decision in Priest v West, the first Victorian Supreme Court decision reviewing a coroner's decision on the application of s57 of the Coroners Act 2008. That provision, which is closely modelled on s128 of the Uniform Evidence Act, preserves the privilege against self-incrimination in coronial inquests, but allows coroners to override the privilege while providing the witness with a certificate that guarantees use immunity and derivative use immunity to the evidence.

The facts
Derek Percy is suspected of killing Linda Stillwell in August 1968. Deputy State Coroner West is currently conducting an inquest into Linda Stillwell's disappearance and presumed murder. Derek Percy was called as a witness and made a global claim to self-incrimination privilege. In response to an applicaiton to override the privilege and grant a certificate, Deputy State Coroner West ruled:

I accept the evidence, if given, would have the potential to explain a very serious unsolved crime but I do not accept the submission that the likelihood of Mr Percy being prosecuted in infinitesimal. A further factor for consideration is the likelihood that the evidence will be unreliable. In this case the abduction occurred over 40 years ago and at a time when Mr Percy may well have been of unsound mind, the mental illness he was subsequently found to suffer. I would not have a high level of confidence in these circumstances as to the reliability of the evidence given.
In assessing the various factors I am satisfied it would not be in the interest of justice to grant a certificate. Whist I have enormous sympathy for the family who have waited a considerable time to hear from Mr Percy, as a matter of law it would be inappropriate for me to compel him to give evidence then give him a certificate granting him immunity in respect of that evidence.

Judicial Review
Jean Priest, mother of Linda Stillwell, sought judicial review of this ruling in the Supreme Court, under Order 56 of the Supreme Court Rules, as Part 7 of the Coroners Act doesn't provide for challenges to individual rulings in the course of an inquest. Bizzarely, Priest raised the following arguments on the challenge to the decision regarding the application of s57:

• The coroner took into account an irrelevant consideration, namely the reports of two psychiatrists, and
• The coroner failed to take into account a relevant consideration, namely the report of a third psychiatrist.

Now, for those that need a crash course in judicial review, the process allows a superior court (the Supreme Court of Victoria) to review the decisions of inferior courts and tribunals (such as the Coroners Court, the County Court and VCAT). The grounds of judicial review are narrower than other appeal rights, and rely on matters such as manifest unreasonableness, misconceiving jurisdiction and the relevant and irrelevant considerations grounds.

As Justice Ross explains at paragraphs 90 and 96, these grounds would require the Priest to establish that Deputy State Coroner West was precluded from considering the reports of the first two psychiatrists and that it was mandatory to take into account the report of the third psychiatrists. This is a very high hurdle to overcome, even setting aside the problem that relevant and irrelevant considerations are usually factors or issues and the ground is not designed to compel a decision maker to treat individual items of evidence in a particular way. All three of the psychiastrists were providing evidence on Percy's reliability and whether this various psychiatric disorders would affect his ability to accurately recall his movements at the time of Linda Stillwell's death. The common element of all of those reports was the reliability of his evidence and that is the 'consideration' in judicial review terms that may be either relevant or irrelevant. Now, I doubt that Priest would have had any more success if she had argued that the reliability of the witness' evidence is an irrelevant consideration for the purpose of s57, but she might have been on slightly firmer ground. The end result of the decision then, was to affirm that a coroner could take reliability into account, but there was no indication that a coroner was bound to do so.

EDIT: The reason I characterised the challenge on the two considerations grounds as bizzare was twofold. First, as Justice Ross succinctly explains, there is a difference between considerations and evidence in support of a consideration. Secondly, there were several other potential bases for judicial review that may have proven more successful. For example, Coroner West's statement that the chance of prosecuting Percy was not "infinitesimal" may have involved a failure to provide procedural fairness (by not giving Ms Priest the opportunity of calling someone a representative of the Director of Public Prosecutions to state his intentions regarding Mr Percy), may have involved an irrelevant consideration and may have been a matter for which there was no evidence. Given that the offence was committed 42 years ago, Percy is currently serving an indefinite sentence and any evidence he gives would be protected by use and derivative use immunity, it is not immediately apparent why the chance of prosecution a) is relevant at all, b) would be other than extremely low and c) would be affected by the coroner's decision to compel Percy to give evidence. Similarly, the coroner's statement that the nature of the alleged offence (murder) was relevant, and Justice Ross' statement at [101] that this was the factor of greatest significance could be open to challenge. The coroner's reasons fail to explain how this is a factor that points against compelling the evidence (indeed, the structure of the ruling suggests that it was accepted as a factor in favour of compelling the evidence, as it was a matter urged by counsel for the family). Again, this is not likely to be successful, but it may at least be arguable that the coroner's reasons are inadequate or that the decision is unreasonable in that, given the prevalence of matters in favour of compelling the evidence, no reasonable coroner could have reached the contrary conclusion. Sadly, these matters were not raised in the proceedings before Justice Ross, and that will make it very hard to raise them in any future appeal.

The Herald Sun's response
Unfortunately, the case is being portrayed in the Herald Sun as brave fight by a sympathetic and cash-strapped pensioner to force the truth out of an underserivng monster. See, for example, the start of this article in today's Herald Sun which is headlined "Mother of murdered schoolgirl makes public plea"

THE mother of murdered schoolgirl Linda Stilwell has made a heart-wrenching plea for public support, in a bid to force an alleged killer to take the stand and reveal what became of her missing daughter.
Jean Priest, a pensioner who works as a volunteer for the elderly, faces bankruptcy as a result of paedophile sadist Derek Percy's demand that she pay his legal fees - up to $30,000 - which he spent winning a Supreme Court ruling that has seen him so far avoid the witness box.

Note especially the choice of term 'spent winning a Supreme Court ruling'. A fairer characterisation would be 'spent defending a Supreme Court case' or 'spent defending a ruling by Deputy State Coroner Iain West'. The 'winning', such as it was, all occurred in the Coroners Court. There is also no mention in the article of the telling discretionary factors identified by Justice Ross at paragraph [100] for refusing relief, even if Coroner West had erred:

The Plaintiff’s conduct in the proceedings before the Coroner tells against the grant of the relief sought. The following points emerge from an examination of the proceedings below:

• Counsel for the Plaintiff accepted that the reliability of the evidence Mr Percy might give was relevant to the determination of whether the interests of justice required Mr Percy to give evidence.
• Counsel for the Plaintiff submitted that the Coroner should have regard to the reports of Drs Bartholomew and Ball in making his assessment about the reliability of the evidence Mr Percy might give.
• No one sought to rely on Professor Ogloff’s evidence about Mr Percy’s memory and counsel for the Plaintiff made no reference at all to Professor Ogloff’s evidence in the course of her submissions about the reliability of any evidence Mr Percy might give.

On reading the article, Ms Priest's pain is palpable, and her desire to know what happened to her daughter 42 readily understandable. However, in seeking sympathy for her case, she is running up against two well established principles of the legal system that apply to the sympathetic and unsympathetic alike:

• The loser of a case is usually required to pay a portion of the legal costs of the successful party (the principle that 'costs follow the event'), and
• Judicial review doesn't provide an opportunity for parties to mend their hand, run a different line of argument or defence, or to substitute the superiour court's decision for that of the original decision maker.

These two factors make the decision in Priest v West, and the subsequent attempt by Mr Percy to obtain a costs order, surprisingly unremarkable, legally speaking.