Hanley v. Cusack [1999] IEHC 6 (10th June, 1999)

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JUDGMENT of Mrs Justice Catherine McGuinness delivered the 10th day of June 1999

1. These Judicial review proceedings concern a post-mortem examination and an inquest arising from the death of Noel Sayers of Shamrock Flats, Geraldine Street, Athy, in the County of Kildare. Mr Sayers body was found in his home on 5th June 1996.

2. The Applicant Mary Hanley is the sister of the deceased man and the Respondent is the Coroner for the County of Kildare. In these proceedings the Applicant seeks a number of Orders of Certiorari as follows:

(1) Certiorari by way of an application for judicial review of the decision of the Respondent on or about the 6th day of June not to cause a full post-mortem examination to be made of the body of a person in relation to whose death an inquest was subsequently held by the Respondent on the 17th day of February 1997 and who was identified thereat as NoelSayers whose ordinary place of residence was stated to be Shamrock Flats, Geraldine Street, Athy, Co. Kildare.

(2) Certiorari by way of an application for judicial review of the inquest held by the Respondent on the 17th day of February 1997 in relation to the death of a person identified thereat as Noel Sayers whose ordinary place of residence was stated to be Shamrock flats, Geraldine Street, Athy, Co. Kildare.

(3) Certiorari by way of an application for judicial review of the record of verdict of the said inquest.

(4) Certiorari by way of application for judicial review of the Coroner's certificate dated the 17th day of February 1997 purporting to furnish to the Registrar of Births and Deaths for the District of Athy in the County of Kildare the particulars for the registration of the said death prescribed therefor and required for the purposes of the Births and Deaths Registration Acts 1863-1987.

3. Leave to issue judicial review proceedings was granted by this Court (Flood J.) on the 31st of July 1997.

4. The body of Noel Sayers was found in the bedroom of his flat by his friend Mr Frank Eustace at 10.20 p.m. on the 5th of June 1996. Mr Sayers had clearly been dead for some time and the body was considerably decomposed. It appears that he was last seen alive on the 31st of May 1996. The Gardai were called to the scene. Dr. Giles O'Neill, a local General Practitioner, examined the body and pronounced Mr Sayers dead. The body was lying half in and half out of the bed. There was no sign of disturbance in the room, which was neat and tidy. The windows were closed. The body was identified as that of Noel Sayers by Mr Frank Eustace, who also provided the information that Mr Sayers suffered from epilepsy, but not from cardiovascular disease. Mr Eustace was familiar with the possessions which Mr Sayers had in his flat and he felt that nothing had been removed. The Gardai found no suspicious circumstances to indicate foul play, third party involvement or suicide. The landlord, Mr Tom Burgess, checked the flat the following day and found no visible signs of any break in.

5. Garda Vincent Collins arranged for a Priest to administer the last rites and made arrangements for the body to be removed to the mortuary at Naas General Hospital. The Gardai reported the matter to the Respondent, Dr Denis Cusack, Coroner for Co. Kildare, at 12 midnight on the 5th of June 1996.

6. The Respondent directed a full post mortem examination to be carried out by Dr. Michael Waldron MRCP at the Mortuary at Naas General Hospital. Dr. Waldron had had experience of carrying out forensic post-mortem examinations in the Kildare area for almost thirty years. The full post-mortem as originally directed by the Respondent was to consist of both external and internal examination together with the taking of any necessary samples of tissue or body fluids.

7. On the 6th of June 1996 Dr. Waldron proceeded to carry out the post mortem. During the course of the post mortem he telephoned the Respondent informing him that he had made two attempts to carry out an internal examination but was unable to do so due to the advanced state of decomposition of the body. He also had a practical difficulty in that his mortuary assistant was having extreme difficulty in coping with the extent of decomposition and putrefaction. He also had technical difficulty because of the state of the tissue of the deceased. The Respondent inquired of DrWaldron whether there were any circumstances which would necessitate further examination and in particular whether there was any evidence of violence or an unnatural death or whether there were any circumstances which would suggest that tissue or other samples ought to be taken and tested. Dr.Waldron advised the Respondent that there was no evidence of any violence or unnatural cause of death and that there were no samples appropriate to be taken for analysis in the circumstance. He further advised that he was satisfied the death had occurred one week previously but that a definite anatomical cause of death was not ascertained.

8. As a result of this conversation the Respondent decided that no further post- mortem examination or sampling would be practicable or reasonable bearing in mind the medical history of the deceased and the information which had been furnished to him by theGarda Siochana. He therefore decided to proceed with the holding of an inquest and directed the necessary investigation by the Gardai, which included the gathering of all available medical evidence in regard to possible natural causes of death. This aspect of the investigation caused some difficulty as, despite the fact that the deceased man appeared to have been taking prescribed medication for his epilepsy, he had not been attending a General Practitioner and, despite diligent investigation by theGardai, it proved impossible to trace either the Doctor who prescribed this medicine or the Pharmacist who dispensed it. It was, however, subsequently ascertained that Mr Sayers had attended Sister Consilio's Centre at Cuan Mhuire, Athy, and there had been treated by a Dr. Noel T.M. Browne. Dr. Browne in a deposition stated that Mr Sayers had had a traumatic history of domestic problems and associated depression. He was in sound mental and physical condition when he left Cuan Mhuire on the 4th of July 1995.

9. Mr Sayers was married but was separated from his wife. It appears that after he left Cuan Mhuire as a patient he continued to work there as an assistant. Following the post-mortem the body of Mr Sayers was released to his family for burial and the funeral took place shortly thereafter.

10. On the 4th of July 1996 the Applicant contacted the Respondent by telephone stating that she was not satisfied with the result of the post mortem on her brother. She raised the question of a third party being involved in Mr Sayers's death. The Respondent asked her to write to him as a matter of urgency concerning her suspicions so that the matter could be investigated. The Respondent then contacted the Garda Siochana and directed them to carry out a further full and extensive enquiry. So far as I can ascertain from the evidence before this Court the Gardai did indeed carry out this further enquiry but no evidence was found in regard to the involvement of a third party.

11. Following a reminder from the Respondent on the 12th of July 1996, the Applicant on the 22nd of July 1996 wrote to the Respondent setting out her concerns in regard to her belief that the deceased man had been subject to a threat on the 21st of May 1996. Apparently MrSayers had been told of this threat by a friend who had received a telephone call. The Applicant stated that her brother had been very concerned about this threat. The Respondent drew the Applicant's letter to the attention of the Garda Superintendent at Carlow Garda Station and asked his opinion as to whether the death of Mr Sayers might have occurred in a violent or unnatural manner, with a view to the possibility of seeking an Order for exhumation of the body of Mr Sayers from the Minister for Justice. Meanwhile the Garda investigation continued. Mr Frank Eustace in a statement to the Gardai said that he was aware of the threat to which the Applicant referred but that Mr Sayers had not in fact been concerned about it and as far as he knew had not taken it in any way seriously.

12. On 20th of September 1996 Inspector P.J. Prendergast of the Superintendent's Office in Carlow wrote to the Respondent stating as follows:-

Further to mine of the 8th August 1996 in above matter I now append the copies of statements of Dr. Charles O'Neill and Mrs Mary Hanley as requested in yours of the 27th of July 1996. We have now concluded our investigations into this death, taking on board the matters alluded to by Mrs Hanley in her letter to you.

The investigation has yielded nothing to suggest that the deceased met his death in a violent or unnatural manner.

While the medical evidence in this case is less than satisfactory, due to the stated reason of putrefaction of the body, there are no grounds, in my opinion, upon which a request under the provisions of section 47(1) of the Coroners Act 1962 could be based.

I might add that I have personally kept in touch with Mrs Hanley throughout this investigation for the purpose of keeping her informed.

If I can be of any further assistance in this matter please do not hesitate to contact me."

13. Further investigations in regard to the general health and medical condition of the deceased were in fact carried out and it was established that he had last been seen by Dr. Browne four months before his death. He had also attended a Dr. O'Connell in Newbridge but not since April 1993. Gardai also investigated a number of incidents involving Mr Sayers prior to his death. These incidents appear to have arisen from excessive consumption of alcohol but do not appear to have had any connection with the death of the deceased.

14. On the 27th of January 1997 the Respondent informed the Superintendent at Carlow Garda Station that the inquest on Mr Sayers was to take place on the 17th of February 1997 and asked him to inform the members of the family, witnesses and solicitors on record accordingly. It appears that the Applicant was not in fact informed of the date of the inquest until the 14th of February 1997 but the Respondent was not aware of this.

15. By the 14th of February 1997 the Respondent was advised by the Garda authorities that all possible avenues of the investigation of the death of the deceased had been exhausted. Despite such exhaustive investigations there was still no indication of any circumstances or evidence suggesting the reality of any possibility of violent or unnatural circumstances in which the deceased might have met his death.

16. The inquest proceeded at Newbridge Courthouse on Monday the 17th of February 1997 at 2 p.m. The Applicant and her husband attended and gave evidence. All present at the inquest were informed of the procedure and purpose of the inquest by the Respondent at the opening of the proceedings. No application for adjournment was made. The Respondent states in his affidavit that all relevant evidence was given and all parties concerned had an opportunity to cross-examine and make legal submissions. The Applicant and her husband gave evidence of a container of pills which the family had found in the clothing of the deceased. This evidence had not previously been brought to the attention of theGardai or of the Respondent and the inquest was adjourned briefly in order to enable the container of pills to be produced and examined. The container had anti-epileptic medication in it but the container had no label and no information with regard to the prescribing Doctor or the dispensing Pharmacist.

17. The jury retired for approximately thirty minutes and brought in an open verdict, stating that the medical cause of death was unascertained. The Respondent then issued a Coroner's Certificate reflecting the jury's verdict. On the certificate the Respondent gave the deceased's marital status as "separated". He was subsequently advised by the Registrar General's Office that the law did not provide for a marital status of "separated" to be entered in the Register of Deaths. The deceased should be described in the register as "bachelor", "spinster", "married", "widow, "widowed" or "divorced". The Respondent states in his affidavit that this error will be corrected by the procedure provided for under Section 50(3) of the Coroners Act 1962.

18. In his affidavit the Respondent avers that the cause of death in this case was not established as is the case in some five to ten per cent of cases where post-mortems are carried out. He avers that the jury's verdict was based upon the best evidence available following extensive investigation as put before the Court by the witnesses, including the Applicant, in accordance with the Coroner's jurisdiction. He also states his belief that having regard to the passage of time and the extent of the enquiries made in the course of the investigation of the death of the deceased man it would be highly improbable that any further evidence which might tend to explain the cause of death would be discovered even were a second post-mortem examination after exhumation to be carried out.

19. The Applicant issued her Judicial Review proceedings by Statement dated the 28th of July 1997. A statement of opposition was filed by the Respondent on the 25th of November 1997.

20. The Applicant sets out in her Statement a number of grounds upon which she seeks relief. The major ground upon which she relies is that the Respondent acted contrary to the principles of constitutional and natural justice and/or at variance with reason and common sense and/or in excess of jurisdiction in failing to have a full post mortem examination carried out onthe body of the deceased Noel Sayers. She claims that in the circumstances the post- mortem consisting of an external examination only was not sufficient.

21. The Applicant through her Counsel also puts forward a number of grounds relating to the form and conduct of the inquest and to the form of the recorded verdict and the Coroner's Certificate. She submits that the Respondent acted at variance with reason and common sense or erred in law in failing to ascertain how, when and where the death of NoelSayers occurred, in failing to carry out adequate investigation to ascertain those facts and in failing to adduce sufficient evidence at the inquest. She also impugns the manner in which the Record of Verdict of the inquest was completed and signed in that it does not state when and where the death occurred. The Applicant also submits that the Coroner's certificate of her brother's death did not comply with the law in regard to the particulars for the registration of his death required for the purposes of the Births and Deaths Registration Acts 1863 to 1987.

22. While Counsel for the Applicant opened the relevant sections both of the Coroners Act 1962 and of the various regulations made thereunder to support the technical criticisms of the Respondent's procedure and certificates, it would I think be fair to say that he relied in the main on the ground that the Respondent should have ensured that a full post- mortem was carried out. By way of evidence on this point the Applicant relied on the affidavit of Dr. Richard Shepherd, Senior Lecturer and Honorary Consultant in the Forensic Medicine Unit of St. George's Hospital Medical School, London. Dr. Shepherd had studied all the available documentary evidence in regard to the post-mortem and the inquest, together with the affidavit of Dr.Waldron sworn on the 21st of May 1998. Dr. Waldron had stated that due to the decomposition of the skin surface of the body any wound would have been more obvious than in the case of an autopsy on a recently deceased corpse. He also stated that in the ordinary course of events it would not be the standard procedure to open the skull of a deceased unless there were some external signs indicating the possibility of an injury thereto. In the case of MrSayers there were no such signs. There was nothing on external examination to suggest the existence of any bony injury to Mr Sayers.

23. Dr. Shepherd in his affidavit disagrees with Dr. Waldron on all these points. He states that in fact decomposition with the associated colour and texture changes in the skin, makes the identification of injuries more difficult. In regard to fatal bony injuries to the head he states at paragraph 4 of this affidavit that:

"Although fatal bony injuries to the skull are commonly associated with overlying soft tissue injuries to the scalp and that, in general terms, soft tissue injuries directly associated with such injuries aforesaid are likely, at least in some areas, to be of the major type aforesaid and are less likely to be obscured by decomposition, it is possible for there to be fatal bony injuries to the head without any overlying soft tissue injuries."

24. He believes that unless the skull and brain are examined directly it is not possible to exclude bony or intracranial injuries completely as a cause of death. He goes on to state his belief that when a body is showing the changes of decomposition it is imperative that the under surface of the skin be examined. He states his belief that a full post-mortem including the opening of all bodily cavities should be carried out in all cases.

25. Counsel for the Applicant submitted that there was no empirical evidence available to the Respondent to support his decision not to require a full post-mortem which he made in response to Dr. Waldron's telephone call on the 6th of June 1996. The Respondent's decision in regard to the post-mortem was fundamentally flawed and it was open to this Court to quash it. He referred to the judgment of the Supreme Court (Keane J.) in Farrell v Attorney General [1998] 1 IR 203 at page 224 where the learned Judge set out the grounds of public interest which a Coroner's inquest should serve, as listed in the Report of the Broderick Committee on Death Certification and Coroners Inquests in England. These grounds of public interest were as follows:

3. To draw attention to the existence of circumstances which, if unremedied, might lead to further deaths.

5. To preserve the legal interests of the deceased persons family, heirs or other interested parties".

26. Counsel for the Applicant submitted that the inquest in the instant case had served none of these purposes.

27. Counsel for the Respondent submitted by way of preliminary objection that the Applicant was disentitled to relief on grounds of delay. No explanation had been offered for the delay from the date of the inquest until the 31st of July 1997 in commencing proceedings. He went on to submit that under the terms of sections 19 and 33 of the Coroners Act 1962 the Coroner is given a discretion as to whether or not to arrange for or request a post-mortem examination of the body of a deceased. While section 52 of the Act prescribed some matters for the carrying out of a post-mortem examination, neither the Act nor any of the statutory regulations made under the Act prescribed any particular form for a post-mortem examination. He submitted that in the absence of some procedural irregularity the exercise by a Coroner of his discretion as to whether and in what form to arrange for a post-mortem examination was not a decision which was liable to judicial review by way of order of Certiorari. In this he relied on the decision of the Supreme Court(Keane J.) in Killeen v DPP [1998] 1 ILRM 1. He argued that in the circumstances the Respondent's decision to accept a limited post-mortem examination was reasonable and appropriate. In the alternative the Respondent's decision was not so fundamentally at variance with reason and common sense as to be open to review by way of judicial review.(O'Keeffe v An Bord Pleanala [1993] 1 IR 39).

28. With regard to Dr. Shepherd's evidence Counsel for the Respondent suggested that Dr. Shepherd was commenting in the context of the type of post-mortem examination which would be carried out by a forensic pathologist (for example, the State Pathologist) where therewas police or other evidence to suggest that the deceased had died a violent death. Had there been such evidence in the case of Mr Seyers there was no doubt that the assistance of the State Pathologist would have been sought, but in the absence of any such evidence it was reasonable to accept Dr. Waldron's findings.

29. With regard to the other ground, Counsel for the Respondent submitted that there was no basis upon which the steps taken by the Respondent between the post-mortem and the inquest could be criticised, and indeed that no concrete or specific criticism of those steps was made by the Applicant. As far as the certificates were concerned it was accepted that to state the deceased's marital status as "separated" was incorrect but that matter was already in course of correction.

30. Counsel for the Respondent pointed out that in her replying affidavit sworn on the 15th of April 1998 the Applicant raised a number of new grounds of complaint in regard to the conduct of the inquest. I would accept his submission that these grounds do not form part of either her original statement nor of the Order of Flood J. granting leave. The Applicant cannot, therefore, rely on these grounds, which are, in any case, factually contrary to the evidence of the Respondent as to the conduct of the inquest, which evidence I accept.

31. Finally Counsel submitted that there was no evidence that the granting of the relief sought would be effective in enabling any further inquest to ascertain the cause of death of the deceased. As a matter of discretion the Court should decline to grant the relief sought.

32. The first matter that falls to be considered is the relevant sections of the Coroners Act 1962. These are as follows

"17. Subject to the provisions of this Act where a Coroner is informed that the body of a deceased person is lying within his district, it shall be the duty of the Coroner to hold an inquest in relation to the death of that person if he is of opinion that the death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes or in a place or in circumstances which, under the provisions in that behalf contained in any other enactment, requires that an inquest should be held.

18(1) Where a Coroner is informed that the body of a deceased person is lying within his district and that a medical certificate of the cause of death is not procurable, he may enquire into the circumstances of the death of that person and, if he is unable to ascertain the cause of death, may, if he so thinks proper, hold an inquest in relation to the death......

(a) is informed that the body of a deceased person is lying within his district, and

(b) is of opinion that that person's death may have occurred suddenly and from unknown causes, and

(c) is of opinion that a post-mortem examination of the body of that person may show that an inquest in relation to the death is unnecessary,

he may cause the examination to be made and if, in his opinion, the report of the examination shows that an inquest in relation to the death is unnecessary it shall not be obligatory upon him to hold an inquest

(2) Nothing in this section shall authorise a Coroner to dispense with holding an inquest in relation to a death if he is of opinion that the death may have occurred in a violent or unnatural manner or in a place or in circumstances which, under provisions in that behalfcontained in any other enactment, require that an inquest should be held.........

30. Questions of civil or criminal liability shall not be considered or investigated at an inquest and accordingly every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how, when, and where the death occurred.....

33(1) A Coroner may at any time before or during an inquest cause to be made a post-mortem examination of the body of any person in relation to whose death an inquest is to be or is being held.

(a) a post-mortem examination by a person appointed by the Minister of the body of any person in relation to whose death the Coroner is holding or proposes to hold an inquest, or

(b) a special examination by way of analysis, test or otherwise by a person appointed by the Minister of particular parts or contents of the body or of any other relevant substances or things, or

and he may make such request whether or not he has exercised any other power conferred on him by this Act of causing a post-mortem examination of the body to be made......

47(1) Where a Coroner is informed by a member of the Garda Siochana not below the rank of Inspector that, in his opinion, the death of any person whose body has been buried in the Coroner's district may have occurred in a violent or unnatural manner, the Coroner may request the Minister to order the exhumation of the body by the Garda Siochana.

(2) On being requested under this section to authorise by Order the exhumation of any body, the Minister may, as he thinks proper, either make or refuse to make the Order....."

33. It should be noted that while section 52 of the Coroners Act 1962 sets out certain provisions in regard to post-mortems it does not define the extent and nature of a post- mortem examination. I would accept the submission of Counsel that no such definition of the extent of a post-mortem examination is contained either in the Act or in any regulations made thereunder. The Coroners Act 1962 (Fees and Expenses) Regulations 1962(S.I. No 92 of 1962) and the Coroners Act 1962 (Fees and Expenses) Regulations 1996 (S.I. No 151 of 1996) distinguish between the fees payable for the carrying out of a full post-mortem examination and the fees payable for performing a post-mortem examination "consisting of an external examination only" but there is no further definition of the examination as such.

34. The statutory form of the Record of Verdict at Coroner's Inquest is set out in the fourth schedule of the Coroners Act 1962 (Forms) Regulations 1962 (S.I. No 94 of 1962). It appears to me that the Record of Verdict in the instant case is in accordance with the statutory form, and that it is open to the Coroner to record an open verdict and to state that the medical cause of death is unascertained if that is the decision of the jury based on the evidence before them at the inquest.

35. The form of certificate to be issued by the Coroner for the registration of a death in accordance with section 50 of the Coroners Act 1962 is set out in the Coroners Act 1962 (Particulars for Registration of Death) Regulations 1962 (S.I. No 95 of 1962) at Rule 2. Again leaving aside the question of marital status, it appears to me that the Coroner's Certificate issued by the Respondent in the instant case is in accordance with these regulations. The matter of the deceased's marital status is not relevant to the issues in these judicial review proceedings. Theerror made by the Respondent is a natural slip and can readily be corrected. In my view it would certainly not amount to a ground for an Order of Certiorari.

36. Counsel for the Applicant referred the Court to the judgment of Keane J. in the Supreme Court in the case of Farrell v Attorney General [1998] 1 IR 203. In his judgment at page 223 onwards the learned Keane J. provides a helpful and valuable discussion of the law applicable to Coroners Inquests. At page 223 he states:

"The holding of an inquest by a Coroner, with or without a jury, has been a feature of our law for many centuries. While few would dispute the need to have a public enquiry by a person with appropriate legal or medical qualifications into the death of a person as a result of violence or in other circumstances which renders such investigation appropriate, our present law governing inquests, despite its partial modernisation in 1962, is in some ways anachronistic, as witness the continuing jurisdiction to hold inquests into 'treasure trove' (see section 49 of the Act of 1962).

In its modern form there are two features of the Coroner's Inquest which are of particular relevance to this case. First, it is a purely inquisitorial procedure. As Lane LCJ put it in R v South London Coroner, ex parte Thompson (1982) 126 SJ 625:

'........it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorialpocess, a process of investigation quite unlike a criminal trial where the Prosecutor accuses and the accused defends, the Judge holding the balance or the ring, whichever metaphor one chooses to use.'

Secondly the verdict resulting from an inquest cannot impose civil or criminal liability of any sort on any person."

37. The learned Judge goes on to quote section 30 of the Act of 1962 which I have quoted above and to refer to the English Report of the Broderick Committee on Death Certification and Coroners Inquests (Cmnd.4810) to which Counsel for the Applicant referred this Court. At page 224 the learned Keane J. continues:

"It is clear that, at common law, the High Court, in the exercise of its inherent supervisory jurisdiction over inferior Tribunals, may set aside in whole or in part, the verdict of an inquest, see Jervis on the Office and Duties of Coroners (11th edition) paragraph 19-15. At one stage this could only be done where there was fraud by the Coroner, or an error by him going to jurisdiction or where an error of law appeared on the face of the record.

To day, however, the jurisdiction to review judicially the proceedings in a Coroner's Court is significantly wider and will extend to the circumstances identified by the House of Lords in Anisminic Limited v Foreign Compensation Commission [1968] 2 QB 862 and by this Court in the State (Holland) v Kennedy [1977] IR 193. Even where there is no error as to jurisdiction, no fraud on the part of the Coroner and no error on the face of the record, there may have been some frailty in the course of the proceedings, such as an error in law or want of natural justice and fair procedures, which would entitle the High Court to set aside the verdict in whole or in part."

38. Senior Counsel for the Respondent , Mr Finlay, in submitting that in the absence of some procedural irregularity, the exercise by a Coroner of his discretion as to whether and in what form to arrange for a post-mortem examination is not a decision which is liable to judicial review by way of Order of Certiorari, referred me to the decision of the Supreme Court(Keane J.) in Killeen v DPP [1998] 1 ILRM 1 and the cases cited therein. This case dealt inter alia with the procedures in the District Court under the Criminal Procedure Act 1967. At page 7 of his judgment the learned Keane J stated:

"It is also clear that where a District Judge, having considered the materials before him, forms an opinion either that there is a sufficient case to put the accused on trial or that there is not, his Order sending the accused forward for trial or discharging him as the case may be, cannot be set aside on certiorari.

'to grant certiorari merely on the ground of want of jurisdiction, because there was no evidence to warrant a conviction, confounds .......want of jurisdiction with error in the exercise of it. The contention that mere want of evidence to authorise the conviction creates a cesser of jurisdiction,involves.........[the] unsustainable proposition that a magistrate has....jurisdiction only to go right; and that, though he had jurisdiction to enter upon an enquiry, mere miscarriage in drawing an unwarrantable conclusion from the evidence, such as it was, makes the magistrate act without and in excess of jurisdiction.'

These observations apply with equal force to the Order of a District Judge sending forward an accused for trial for an indictable offence or discharging him in respect of the same offence."

39. Both Counsel refer to me to the well known case of O'Keeffe v An Bord Pleanala [1993] 1 IR 39 and in particular to the passage from page 70 onwards where the learned Finlay CJ discusses the concept of "irrational decision" and refers back to the principles laid down by the Supreme Court in The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642. In this discussion the learned Chief Justice approves the dictum of Lord Brightman in R v The Chief Constable of North Wales Police, ex parte Evans [1982] 1 WLR 1155 at page 1160:-

"Judicial Review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the Court is observed, the Court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurpingpower......Judicial Review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made."

40. This dictum was, of course, also approved by the Supreme Court in the Stardust case.

41. Finlay CJ in a much quoted passage at page 70 dealt with the circumstances under which the Court could intervene to quash the decision of an administrative officer or Tribunal on grounds of unreasonableness or irrationality. He quoted the dicta of Henchy J. in the Stardust case as follows:

2. It is indefensible for being in the teeth of plain reason and common sense.

3. Because the Court is satisfied that the decision maker has breached his obligation whereby he "must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision."

"I am satisfied that in order for an Applicant for judicial review to satisfy a Court that the decision making authority has acted irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary that the Applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant material which would support its decision."

43. It is clear from the statutory provisions set out above that the directing or requesting of a post mortem examination is a matter for the discretion of the Coroner (Sections 19 and 33). The holding of an inquest, in contrast, is mandatory where the Coroner is of opinion that the death may have occurred in the circumstances set out in section 17 of the 1962 Act.

44. It is accepted by both parties that the Respondent's decision in the first place to direct a full post-mortem examination was a proper exercise of his discretion. The Applicant's challenge is to his subsequent decision, on the advice of Dr. Waldron, to accept a post-mortem limited to external examination only. On the authorities opened to me, in particular the passage from Farrell v Attorney General quoted above, I consider that this Court would be entitled to review that decision.

45. The Applicant impugns the decision as being ultra vires, as being contrary to constitutional or natural justice, as being at variance with reason and common sense, as being in excess of jurisdiction or as being an error of law. Given the statutory provisions it does not appear to me that the Respondent's decision can be criticised as being ultra vires or in excess of jurisdiction. If, which I do not accept, the Respondent erred in law, he did so within jurisdiction and his decision would thus not be amenable to judicial review.

46. As far as the natural or constitutional justice ground is concerned, it appears to me that on the evidence as a whole the Respondent 's procedures from beginning to end of this matter were in accordance with natural and constitutional justice. He received and considered all information available to him. He heard and carefully considered the concerns and suspicions put to him by the Applicant and set in train further and more searching investigations in response to her complaints. He considered the possibility of exhumation of the deceased under section 47 of the 1962 Act and specifically sought the advice of the appropriateGarda Officer under that section. He was advised in terms by the Garda Officer that no grounds for exhumation existed. He conducted the inquest itself in a fair and just manner and called all the available relevant evidence.

47. There remains the claim that the Respondent's decision was "unreasonable". For this ground to succeed the Applicant must meet the standard laid down by the Supreme Court in the O'Keeffe decision. In effect she must show that the Respondent had no relevant material before him to support his decision. It seems to me that this is patently not the position.

48. From the beginning both the Gardai and Dr. Giles O'Neill had informed the Respondent that there was no evidence of any suspicious circumstances to indicate that the deceased had died a violent death nor any evidence pointing to the involvement of a third party. They also informed him that the deceased had a history of epilepsy but no history of cardiovascular disease. Their information was supported by the evidence of the landlord and of MrEustace that there was no sign of a break in to the flat and that none of Mr Sayer's possessions had been removed. Dr. O'Neill also observed that the flat was "neat and tidy", that there was no sign of disturbance and that the windows were shut. No drugs or other substance which might have raised the suspicion of suicide or poisoning were found in the vicinity of the deceased.

49. Dr. Waldron carried out a thorough and detailed external examination of the body and informed the Respondent that there was no evidence of any violent or unnatural cause of death and that there were no samples appropriate to be taken for analysis in the circumstances. He was unable to proceed with an internal examination of the body.

50. All of the subsequent diligent and far reaching investigations carried out by the Gardai failed to produce any evidence which contradicted the information already available to the Respondent or any evidence which indicated the involvement of a third party.

51. It is clear that the Respondent had ample material before him upon which he could base the decision which he took. This ground also must fail.

52. Judicial review is a discretionary remedy. I feel that in the particular circumstances of this case I should add that I accept the Respondent's submission that the granting of the relief sought would be unlikely to enable any further inquest to ascertain the cause of death of the deceased. The Applicant has not produced any evidence that there is now available any relevant evidence which was not available to the Respondent and the jury at the inquest. The granting of the relief sought would not automatically result in an order for the exhumation of the body of the deceased as the Respondent could only seek an Order from the Minister for an exhumation under section 47 of the Act if he was informed by aGarda Officer not below the rank of Inspector that in the Officer's opinion the death may have occurred in a violent or unnatural manner. During the course of the investigation Inspector Prendergast had specifically informed the Respondent that he did not hold that view and no evidence has emerged since then which might lead him to form a different view. Even if an exhumation were to be ordered and a fresh post-mortem examination were to take place it is accepted by the Applicant that at this stage such a post-mortem could only deal with the question of whether the deceased had suffered any bony injury and Dr.Waldron did not find any signs of injury in his examination of the body. While Dr. Shepherd in his affidavit expresses the view as quoted above that it would be possible for there to be fatal bony injuries to the head without any overlying soft tissue injuries he does so in a very cautious and qualified way.

53. Apart, therefore, from the considerations of law already set out above I would consider that as a matter of discretion in this case the relief sought by the Applicant should be refused.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hanley v. Cusack [1999] IEHC 6 (10th June, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/6.html Cite as: [1999] IEHC 6

High Court of Ireland Decisions

Hanley v. Cusack [1999] IEHC 6 (10th June, 1999)