Carroll & Woodhouse v Coroner's Court & Police Hc Ak

JurisdictionNew Zealand
JudgeWinkelmann J
Judgment Date29 April 2013
Neutral Citation[2013] NZHC 906
Docket NumberCIV-2012-404-4779
CourtHigh Court
Date29 April 2013

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF a decision made by Coroner Peter Ryan following an inquest into the death of Iraena Rama Te Awhina Asher

BETWEEN
Bobbie Joan Carroll, Julia Leticia Woodhouse and Henry John Woodhouse
Applicants
and
The Coroner's Court at Auckland
First Respondent

and

New Zealand Police
Second Respondent

[2013] NZHC 906

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Counsel:

G N Gallaway for the applicants

G Coumbe as amicus

S W McKenzie for the Police

JUDGMENT OF Winkelmann J

1

In the early hours of 11 October 2004 Iraena Asher, a 25 year old woman, disappeared into the night at Piha, a rural beach side area west of Auckland. She was never seen again. The three applicants, Ms Carroll, Ms Woodhouse and Mr Woodhouse, cared for Iraena in the hours preceding her death, having earlier found her wandering near the road, semi-clothed and distressed. Immediately following a coronial inquest into her death, held in July 2012, the Coroner issued a finding in which he concluded that Iraena had walked into the sea at Piha Beach and drowned. In the course of his finding he discussed in some detail the applicants' decision not to call the Police when they came to Iraena's assistance. He concluded that the applicants' decision not to contact Police was a contributing factor in Iraena's death.

2

The applicants challenge that finding on three bases. They say it was unreasonable because there was no evidence upon which it could properly be based. Secondly, it was made in breach of s 15(2)(b) of the Coroners Act 1988 (the Act), which obliged the Coroner to give the applicants prior notice of his intention to comment adversely upon their conduct and an opportunity to be heard in relation to that comment. Finally, they say that the finding was otherwise made in breach of the principles of natural justice because the applicants had no notice that their conduct was likely to be the subject of scrutiny at the inquest.

3

The applicants seek to have the finding quashed and costs awarded in their favour.

4

Because the first respondent, the Coroner's Court at Auckland, abides the decision of the Court, I appointed Ms Coumbe as amicus to assist the Court by raising arguments which could properly be made and which would not otherwise be covered in argument before me. The second respondent, the New Zealand Police (the Police), was joined to the proceedings by the applicants, as I understand it, because the Statement of Claim contains allegations concerning the conduct of the Police which it is suggested contributed to a breach of the applicants' right to fair procedure.

5

I have concluded that all three grounds of review are made out. The Coroner's finding that the applicants' decision not to call the Police was a contributing factor in Iraena's death was unreasonable, as it had no proper evidential foundation. Rather, it was based upon speculation as to a possible outcome if events had occurred differently. Moreover, the requirements of s 15(2)(b) and natural justice as applicable in the context of a coronial inquest were not complied with. It is therefore appropriate to quash the Coroner's comments in relation to the applicants. I set out the reasons for this conclusion below.

Background
Iraena's Disappearance
6

It is first necessary to set out some of the background to Iraena's disappearance, and for this purpose, convenient simply to adopt the summary of facts as set out in the Coroner's findings: 1

[2] [On] … 10 October 2004, Iraena along with her boyfriend of approximately 10 days and two others, travelled by car out to an address at Piha Road, at Piha Beach. There were four people in that house that day, although others came and went at different times. There was Iraena and her boyfriend, [B], and the occupants of the house, [G and H]. During that day, the four occupants were drinking alcohol and acknowledged smoking marijuana. At one point during the day, Iraena left the house and went down to Piha Beach where she met a couple and their child who were walking around a headland. The couple spoke with Iraena and recalled that she was emotional, complained of being tired and cold and was muttering. They indicated that she appeared to be out of place and in her own world. This couple helped Iraena by assisting her to walk back to where their car was parked and then they gave a lift back to [the Piha Road address], where she told them she was staying.

[3] Ms Asher was wet from the sea and had a shower and a rest once she had returned to the house. She remained at [the Piha Road address] for the rest of the day, until approximately 8.00 pm that evening. At that point, [B] her boyfriend left the house and walked to his parents’ address nearby. [B] states that Iraena asked him to leave the house and he was not worried about this request because, in his opinion, she had gone ‘a bit funny’. Iraena remained at the house with [G and H] for approximately one more hour. She left the house after making a telephone call, and that subsequently turned out to be the emergency call that she made to the Police Communications Centre.

[4] Between approximately 8.55 pm and 9.11 pm on Sunday 10 October 2004, there were three telephone calls between Iraena and the Police Communications Centre. After 9.11 pm, the Police were no longer able to contact Iraena on the cellphone and it transpired that when she left [the Piha Road address], she either dropped or threw the cellphone down on the driveway of the property.

[5] Between 9.20 and 9.30 pm on 10 October 2004, Iraena was seen walking up Piha Road by a Piha resident, Julia Woodhouse and her son, Henry Woodhouse. They were driving towards Piha on what was described as being a cold, wet night. They noticed Ms Asher walking through a secluded part of Piha Road in inclement conditions and they noticed that she looked [distressed], had bare muddy legs, with few clothes on. They stopped and talked to Ms Asher and ascertained whether she needed assistance. She indicated that she did; in fact she told them that she had been kidnapped. They offered her help and took her to Ms Woodhouse's home […].

[6] Ms Asher spent approximately four hours in the house with Ms Woodhouse and her partner, Ms Bobbie Carroll, and Ms Woodhouse's son, Henry Woodhouse. [They] formed the impression that Iraena might be under the influence of drugs, because of her erratic behaviour. However, they also indicated that they felt that she was coming down from a high. What was not known to [them] was that Ms Asher suffered from bi-polar affective disorder. She was first diagnosed with this condition around the age of 16 and evidence establishes that the condition was very well controlled by medication.

[7] Iraena declined the offer from the people […] to contact the Police or an ambulance and offered some resistance to their attempts to contact others on her behalf, although contact was made with the mother of Mr Dyson who had been Iraena's partner for approximately the last four years. Iraena had approximately a five minute conversation with Mr Dyson's mother.

[8] The [people] spent the next four hours with Iraena, and during that time they watched television, discussed the programmes that were on television and engaged in conversation with Iraena. At one point, Iraena told Henry Woodhouse things that had happened during that day. Mr Woodhouse was unable to remember in detail much of what she said to him, other than the fact that she said she had pictures taken of her by the people at [the Piha Road address] without her approval.

[9] At around 1 o'clock in the morning of 11 October, a bed was made up in the lounge for Iraena to spend the rest of the night at the property with the promise that the occupants would take her back to Auckland in the morning. Iraena was reluctant to sleep in the lounge by herself and in fact insisted that Henry Woodhouse stay in the lounge with her. A separate bed was made up for him on the other side of the room. Everybody in the house was either in bed or getting ready for bed at approximately 1.00 am, at which point Iraena got up out of bed and went to the door of the residence. Henry Woodhouse tried to persuade her to remain in the house, but Iraena left the house and disappeared into the night. She was wearing only a dressing gown that had been provided to her by Ms Carroll.

[10] Ms Carroll attempted to follow Iraena in her car and drove up the road where she discovered the discarded dressing gown lying on the road. She drove around, heading up Piha Road, trying to find Iraena, but there was no sign of her. Ms Carroll then returned to the house, at which point the Police were notified and then Ms Carroll and Ms Woodhouse both went off in the car again to try and find Iraena.

[11] At around that time, Zachary Nixon and his partner, Simone Ross, were out walking their dog. As they walked along Garden Road in Piha, heading towards the Piha store, they saw a woman standing under a streetlight at the apex of Garden Road and Marine Parade or Seaview Road as it may have been; the apex of the corner nearest to the store. They noticed that this woman was completely naked, had her arms stretched up at one point and appeared to be engaged in some kind of ritual. She was observed to kneel down and kiss the ground possibly. This woman was subsequently identified as being Iraena Asher.

[12] Mr Nixon and Ms Ross then observed Iraena walk off down Seaview Road, heading towards Piha Beach. She disappeared from their view approximately halfway down the road, when the streetlight stopped. There were no further streetlights beyond that point. This couple continued to walk down Seaview Road to see if they could see where Iraena was going, but they were unable to sight her...

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