Goldsborough v Bentley  QSC 141
In the recent case Goldsborough v Bentley, which involved a German tourist who tragically drowned at a nature park in North Queensland, the Queensland Supreme Court ordered the Regulator to tell the coroner why they did not recommend a prosecution.
How this will affect you
- this decision could provide scope for a coroner to criticise, or make recommendations about the relevant prosecution guidelines and policies of Queensland Government departments
- any such comment or recommendation, or simply the fear of any such comment or recommendation, might result in changes to the relevant policy or in how it is applied, with a real potential for an increase in prosecutions following a fatality, and
- this decision also confirms, and perhaps extends, the broad scope of inquiry in a coronial inquest and the ability for coroners to make comments on peripheral matters.
Following the death, an investigation was conducted by the Office of Fair and Safe Work Queensland (OFSWQ) and a decision was ultimately made not to prosecute the company that managed the park as a tourist facility, or that company's directors.
A coronial inquest into the death commenced in late 2013 and was adjourned soon after, when the Investigating Officer from OFSWQ refused to answer a question posed by Counsel Assisting the Coroner about why a recommendation was made not to prosecute.
This issue was then escalated to the Supreme Court to decide whether it is within the scope of a coroner's powers under the Coroner's Act 2003 (Qld) (the Act), to investigate the reasoning of a decision not to prosecute.
On 26 June 2014, the Honourable Justice McMurdo handed down his decision, affirming that Coroner Jane Bentley may direct the Investigating Officer to answer the question.
The coronial inquest will recommence on 14 October 2014.
On 10 January 2011, a 19 year old German tourist was swimming in a waterhole at Granite Gorge Nature Park when she and her friend were sucked into an underwater cave system beneath massive granite boulders. The tourist subsequently drowned, her body having been recovered by police divers the following day, while her friend managed to locate a pocket of air at the roof of the cave, where she stayed for 15 minutes before managing to escape using a tree root that was sticking out of the water.
The OFSWQ Regional Manager (Investigating Officer) started his investigation on the day of the incident, and made a recommendation to his superior on 12 August 2011 that no prosecution be initiated. This decision was subsequently confirmed by the Director of Legal and Prosecution Services at the OFSWQ (Director), on 5 December 2011.
A coronial inquest began on 10 December 2013, but was adjourned on 12 December 2013, when Counsel Assisting the Coroner asked the Investigating Officer why he made a recommendation to the Director not to prosecute. At this point Counsel appearing for the OFSWQ objected and was granted leave to seek judicial review.
Justice McMurdo concluded that while the decision whether to prosecute "is unconnected with the cause of death or any other matter", it is a subject that has a connection to the death that is being investigated, as it is "something which... could be the subject of an appropriate comment by a coroner".
Justice McMurdo's decision confirms that a coroner may not only investigate the reasoning of a decision not to prosecute, but may also make any comment in relation to such a decision that is relevant to either the administration of justice or the prevention of similar deaths in the future. This is provided that the coroner does "not include in any comment... any statement that a person is or may be guilty of an offence".
Why did OFSWQ choose not to prosecute?
At this stage one can only speculate about the reasons why the OFSWQ chose not to prosecute. However, Justice McMurdo specifically acknowledged that there may be "some policy being applied by the agency which [is] having the consequence that for no good reason, persons [are] not being prosecuted".
This statement is likely to sound alarm bells for prosecutors and government departments, who presumably, do not want to find themselves public ally criticised for failing to prosecute for "no good reason".
Will this lead to more prosecutions?
While the Coroner cannot technically make any comment as to the guilt or liability of the company or its directors, it is possible that the Coroner may make adverse comments about the current prosecution policy of the OFSWQ and the decision not to prosecute. Such comments may lead to reconsideration by the OFSWQ of their decision not to prosecute the company or its directors, as a prosecution may be commenced within one year after a coronial report is made or an inquest ends.
Significantly, this decision will apply across the board to all prosecuting departments, not just the OFSWQ. It will be interesting to see whether other departments will start to reconsider their prosecution policies following a fatality, due to a fear of potential public criticism at a coronial inquest.
Could we perhaps see an increase in health & safety, environment, transport and other such prosecutions? We will know more when Coroner Jane Bentley publishes her findings and comments following the completion of the coronial inquest, which is set to resume on 14 October 2014 in the Cairns Magistrates Court.
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