The saga of Dr Spencer continues – see:

The latest instalment is Spencer v Coroners Court of Victoria [2024] VSC 757 where Dr Spencer sought orders in the Victorian Supreme Court to set aside the findings of the Coroner who had referred him to the Director of Public Prosecutions (‘the DPP’) for further consideration of whether he had committed a criminal offence, in particular manslaughter by criminal negligence.

An interested person may appeal to the Supreme Court against the findings of a coroner (Coroners Act 2008 (Vic) s 83), but the appeal is limited to questions of law only (s 87; Spencer v Coroners Court of Victoria [2024] VSC 757, [40]-[41]), that is the appellant has to argue that the coroner misapplied the law.  One cannot appeal simply because one disagrees with the coroner’s interpretation of the evidence and his or her findings as to what happened.

The matter was further complicated by the terms of the Coroners Act 2008 (Vic) which talks about findings as well as comments and recommendations. When investigating a death the Coroner is required (s 67(1)) to:

… find, if possible—

(a)          the identity of the deceased; and

(b)          the cause of death; and

(c)          unless subsection (2) applies, the circumstances in which the death occurred; and

(d)          any other prescribed particulars.

Section 67(3) says:

A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.

The coroner cannot make a finding of, or suggest that someone is guilty of a criminal offence (s 69) but he or she may form the belief that an indictable offence has been committed.  Where the coroner does form the belief that ‘an indictable offence may have been committed in connection with the death …’ then the principal registrar is to report that to the DPP (s 49(1)).

Dr Spencer wanted to set aside the entirety of the coroner’s report but this was not possible.  Richards J held (at [36]) that ‘an appeal may only be brought against the findings of the coroner, as distinct from the coroner’s comments or recommendations’ even though, as ‘Counsel for the Coroners Court acknowledged … it can be difficult to differentiate between findings, comments, recommendations, and other things that appear in a coroner’s report, and that the difficulty is something that bedevils coronial practice’ ([39]).

Her Honour noted that Dr Spencer had not fully participated in the coronial inquest ([4]-[5]).  In his appeal Dr Spencer

… identified seven wide ranging ‘questions of law’, with numerous sub-questions, directed to the whole of the coroner’s investigation and determination. They are not confined to the coroner’s findings, and refer to various matters that were not before the coroner. Many of the questions seek to raise arguments that Dr Spencer might have made to the coroner at the inquest, had he engaged fully with that process. Most significantly, the amended notice of appeal does not clearly identify questions of law that might be the subject of an appeal.

Even so, given he was not legally represented, the judge tried to identify if there were any legitimate grounds of appeal raised in Dr Spencer’s application.  Her Honour found that Dr Spencer asked a number of questions about the coroner’s reasoning, but he did not specifically raise issues of law.  She said (at [47]-[48]):

… none of the sub-questions or grounds of appeal identifies a question of law.  They concern matters of fact that were canvassed in the determination, without the coroner having reached any firm conclusions about them.

I appreciate that Dr Spencer is concerned about harm to his reputation that may result from the coroner’s determination, including reference to evidence that was adverse to Dr Spencer.  He is also concerned about action that is being taken by AHPRA in relation to his professional registration. However, Dr Spencer’s right of appeal under s 83 of the Coroners Act does not extend to sanitising the coroner’s outline of the evidence that informed his findings and comments… In my view, the coroner accurately and fairly summarised the relevant evidence in his determination. It was open to Dr Spencer to put more evidence before the coroner, and to make more comprehensive submissions, in response to the potential findings provided to him in September 2022. He had ample opportunity to do so, but did not make the most of that opportunity.

At [87]-[91] Her Honour said:

Dr Spencer represented himself in this proceeding.  While he is an intelligent and articulate man, like other litigants in person ‘he lacked two critical qualities possessed by competent lawyers: professional skill and ability, and objectivity’.  The Coroners Court attempted to redress this disadvantage by reformulating the questions in the amended notice of appeal as possible questions of law, but Dr Spencer rejected that assistance. During his oral submissions at the trial, I tried to draw his attention to relevant matters, in particular the limited nature of an appeal under s 83 of the Coroners Act and the distinction between the coroner’s findings and other parts of the determination. Dr Spencer did not address those matters, preferring to persist with his prepared submission.

Dr Spencer’s position of disadvantage was evident from the voluminous material he filed in support of his appeal, much of which was repetitive, irrelevant, or misconceived.  I have read and considered all of the material relied on by Dr Spencer in this proceeding, and his oral submissions at trial, although I have not mentioned every matter he raised in these reasons…

Dr Spencer made liberal accusations of perjury, fraud, corruption, and other misconduct against various people who had been involved in or given evidence to the police investigation and the coronial investigation. Most of these accusations were irrelevant to the coroner’s findings and, as far as I could tell, none was supported by any cogent evidence. The people concerned were not parties to the proceeding and had no opportunity to respond to the serious allegations that were made against them. At the end of the trial, I reserved my judgment with the caveat that, should I come to the view that any of those people should be heard, I would give them that opportunity before delivering judgment. As will be evident from these reasons, it was not necessary to take that course.

Dr Spencer’s appeal was dismissed.

Discussion

So what?

In one sense this case makes no difference.  Dr Spencer was referred to the DPP by the coroner. In April 2024 it was confirmed that no charges would be brought. The DPP advised Victoria Police that there was ‘insufficient evidence from medical experts as to whether Ms Spencer would have survived if emergency services had been called sooner, and that they did not consider that there was a reasonable prospect of conviction’ ([49]).

Given the recommendation by the DPP there is to be no prosecution of Dr Spencer so the fact that it remains in the public record that the coroner referred him to the DPP makes no practical or legal difference. The coroner thought an indictable offence may have been committed, the DPP determined that there was insufficient evidence to justify any prosecution.  Dr Spencer is, as her honour noted, trying to remediate his reputation but there is no right of appeal, nor power in the court, to rewrite the record even if, as in this case, the decision is not to prosecute.

Justice delayed is justice denied

I still have concerns about the length of time these proceedings are taking.  Dr Spencer’s wife died in January 2015.  It is now nearly 10 years since Mrs Spencer died. Victoria Police took 7 years to decide not to charge Dr Spencer and that held up all the other processes whilst they made their decision.

Despite Dr Spencer’s complaints, the coroner was only able to proceed after the police reported that they would not be proceeding with criminal charges (April 2022) and the coroner was able to conduct inquiries, receive expert evidence, give Dr Spencer time to response and delivered his findings and recommendations in June 2023 (see [3]-[6]) it in 14 months.  All things considered was reasonably prompt even if Dr Spencer did not like the outcome of those proceedings. 

It took another year for the DPP to again confirm that there would be no criminal charges. 

Dr Spencer did return to practice in 2021 and he complied with various conditions on his registration until the Medical Board again took immediate action to suspend his registration after the delivery of the coroner’s findings, ie July 2023.   He remains suspended under the ‘immediate action’ provisions of the Health Practitioner Regulation National Law whilst the substantive question of whether he is a fit and proper person to practice medicine makes its way through the processed of the Medical Board and then, if allegations are made, the Victorian Civil and Administrative Tribunal.  No doubt resolution of the matter is still some years off.

One gets the feeling that the police, the coroner and the medical board all have an uneasy feeling about Dr Spencer.  No doubt there is much in the facts to make anyone question his fitness – the judge reported (at [56]) that Dr Spencer’s accounts of what happened and the timing of his actions ‘were inconsistent and changed over time’.   Dr Spencer’s role in taking drugs, challenged evidence of a prior history of domestic violence and suggestions that Dr Spencer spent time cleaning up the scene rather than caring for his wife (see [27(31)]) all create an uncomfortable impression. 

But after 10 years it has been decided – twice – that there is insufficient evidence to bring a criminal prosecution. The Medical Board has not yet brought allegations of professional misconduct before VCAT.   The impression is that many think Dr Spencer did something wrong but no-one has been able to prove exactly what that was. 

In in Spencer v Medical Board of Australia (Review and Regulation) [2024] VCAT 833 (discussed in my post Doctor remains suspended over CPR performance (September 7, 2024) VCAT was concerned about the standing of the profession if a practitioner subject to the sort of comments made by the coroner continued to practice medicine.  But what does it do to public confidence in the profession and its regulatory procedures if it takes over 10 years to investigate a matter and a practitioner’s fitness to practice and the matter is still unresolved?

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.