Coronial matters

Note:

All references to sections in this chapter are, unless otherwise stated, references to sections of the Coroners Act 2009. Although reference is made to legislation and case law where appropriate, some of the information contained in this chapter is in accordance with practices of the Coroner’s Court as at March 2023.

[44-000] The role of the coroner

The role of a coroner is both judicial and investigative. It is to investigate and make findings about unnatural, sudden, or suspicious deaths: ss 3 and 17. In addition, a coroner’s role is to conduct mandatory inquests into certain kinds of deaths. These include deaths of persons in custody or as a result of police operations. In NSW, coroners also have jurisdiction to investigate fires and explosions.

A key function of the coroner is also to make recommendations with the goal of preventing future deaths: ss 3(e) and 82.

“Coronial proceedings” are defined in s 46 to include inquests into deaths, fire inquiries and interlocutory proceedings relating to those types of proceedings: see s 46(1) and (2).

All NSW magistrates are coroners by virtue of their status: s 16. Coronial matters which arise in the Sydney metropolitan area are handled by the State Coroner and Deputy State Coroners (senior coroners) situated at the Lidcombe Coroners Court.

For all NSW reportable deaths, the coronial directions for post mortem investigations are made by the State Coroner and the Deputy State Coroners at Lidcombe: see Post mortem investigative procedures: coronial directions at [44-040].

In regional areas, coronial jurisdiction is ordinarily exercised locally by the magistrate, with the exception regarding NSW reportable deaths, above, and the matters in State Coroner’s Bulletin No 23 of December 2022. See When do the State Coroner and Deputy State Coroners have exclusive jurisdiction? at [44-020].

See also Coronial Practice Note 1 of 2018 for further information.

Resources available at Lidcombe Coroners Court:

Deaths of First Nations people

In 2022, the State Coroner issued the Protocol in relation to deaths in custody of First Nations people. Its purpose is to implement the recommendations relating to coronial processes arising from the Royal Commission into Aboriginal Deaths in Custody. In particular, it aims to ensure that, for First Nations families, coronial processes do not perpetuate cycles of grief and loss.

The Protocol requires investigations and inquests involving First Nations deaths in custody to be carried out in a timely manner. Importantly, there is to be early engagement with First Nations families to explain coronial procedures, keep them updated on an investigation/inquest’s progress, and ensure their concerns are understood and examined. Importantly, the Protocol also aims to ensure that inquests are conducted in a culturally appropriate manner, in consultation with the family.

Although the Protocol is directed mainly to deaths of First Nations people in custody, its content is designed to guide coroners’ response in relation to all reportable First Nations deaths.

For all reportable deaths of First Nations people, coroners are strongly encouraged to make early contact with a member of ACISP based in Lidcombe. ACISP officers will generally make immediate contact with First Nations family members, and are skilled in providing ongoing support to these families. ACISP officers are also an invaluable support to coroners in providing advice regarding family concerns and how the inquest (if there is to be one) can be conducted in a manner that is culturally appropriate to the deceased person’s family and community.

[44-020] Reportable deaths

Last reviewed: November 2023

What deaths are reportable to coroners?

Section 6 defines a “reportable death” as:

  • violent or unnatural deaths: s 6(1)(a)

  • sudden deaths the cause of which is unknown: s 6(1)(b)

  • deaths in unusual or suspicious circumstances: s 6(1)(c)

  • deaths which are not the “reasonably expected outcome of a health-related procedure”: s 6(1)(e), or

  • deaths of patients resident in psychiatric hospitals, including patients temporarily absent: s 6(1)(f).

Section 35 requires that a person who has reasonable grounds to believe that a reportable death has taken place must make a report to a police officer, a coroner or assistant coroner as soon as possible.

There is no longer a requirement that a deceased person must have seen a medical practitioner within six months of their death, to allow for a doctor to issue a death certificate. For deaths occurring on or after 20 January 2020, a doctor may issue a death certificate without having seen the deceased within a prescribed timeframe.

However a doctor is prohibited from issuing a death certificate in respect of a reportable death: s 38. Any death certificate issued in respect of a reportable death is invalid.

What health-related procedure deaths are reportable?

The definition of “health-related procedure” is broad. Section 6(3) states that it may be a medical, surgical, dental or other health-related procedure. It includes the administration of anaesthetic, sedatives and other drugs.

Whether a death is reportable following a health-related procedure involves considering the following:

  • was the decision to undertake the procedure a reasonable one, having regard to the patient’s condition/any underlying disease or injury, and their quality of life if the procedure was not carried out?

  • did the procedure cause or contribute to the death, or would it have occurred in any event as a result of the patient’s condition/any underlying disease or injury?

  • was the procedure carried out with reasonable care and skill?

What do reports to the coroner contain?

Ordinarily, reports of deaths are prepared by police officers in a Form P79A “Report of death to the coroner” (Form P79A). This report summarises the known details of the deceased person, identifies the next of kin, and sets out the circumstances of the death or the discovery of the body. It should advise whether or not the deceased person is of Aboriginal and/or Torres Strait Islander descent. It will also provide preliminary advice that the matter is, or is not, one which falls within s 24 concerning children and persons with a disability.

Usually the Form P79A also informs the coroner whether a medical practitioner has been treating the deceased person in recent times, and the deceased person’s known medications. It will also usually outline the preliminary views of the police as to whether the circumstances of the death are suspicious.

As the Form P79A is prepared at a very early stage, subsequent investigations may provide additional information contrary to information contained in it.

If a person dies in hospital, in addition to the Form P79A, the coroner will be provided with a NSW Department of Health — Form A “Report of death of a patient to the coroner”. It provides an opinion as to the cause of death.

The suspected death of a missing person is reported in a Form P79B “Report of suspected death to the coroner” which is prepared by police. This form sets out the missing person’s particulars and the relevant information concerning their disappearance, the attempts made to locate them, and the basis on which death is suspected by police.

When does a coroner have jurisdiction?

A coroner has jurisdiction when:

  • a reportable death is reported: s 21(1)(a)

  • a coroner has reasonable cause to suspect that a death is a reportable death, whether or not a report has been made: ss 20 and 21(1)(a)

  • it appears to a coroner, or there is reasonable cause to suspect, that a medical practitioner has not issued a death certificate in respect of a death or suspected death: s 21(1)(b).

The death in question must have occurred within the last 100 years: s 19. The deceased must have a sufficient connection with NSW: s 18. A coroner’s jurisdiction is not dependent on a report being made under s 35: see s 20.

When do the State Coroner and Deputy State Coroners have exclusive jurisdiction?

The State Coroner and Deputy State Coroners, called “senior coroners” in s 22, have exclusive jurisdiction in respect of deaths:

  • in custody or in other lawful detention: s 23(1)(a), (b), (d) and (e)

  • as a result of police operations: s 23(1)(c)

  • of children in care: s 24(1)(a)

  • of children who have been the subject of reports made to the Department of Communities and Justice (DCJ) within 3 years of the death: s 24(1)(b)

  • of siblings of children reported to DCJ within 3 years of the death: s 24(1)(c)

  • of children which might be due to abuse, neglect or which are otherwise suspicious: s 24(1)(d)

  • of persons living in or temporarily absent from specialist disability accommodation or assisted boarding houses: s 24(1)(e)

  • of disabled persons receiving care in the community: s 24(1)(f).

Deaths of persons in aged care homes are not of themselves included in s 24.

Whether a facility is “specialist disability accommodation ” within the meaning of s 24(3), is usually disclosed in the Form P79A.

The reporting requirements in relation to deaths in custody are contained in s 37.

The State Coroner has also directed that the following matters be transferred to the State Coroner at Lidcombe (see State Coroner’s Bulletin No 23 of December 2022):

  • the sudden and unexpected death of an infant aged under 12 months old where the cause of death is not immediately apparent at the time of death

  • the death of a person as a result of murder or suicide

  • the death of persons as a result of a disaster (where there are 5 deaths or more), not including a motor vehicle collision

  • the death of a person as a result of a VH registered aircraft crash, not including gliders or non-VH registered aircraft

  • where an inquest is likely to take 5 days or more to complete, and

  • a high profile or significant public interest matters at the direction of the State Coroner.

Before a regional coroner makes a decision to set a matter down for inquest or inquiry, they must consult with the Duty Coroner: see State Coroner’s Bulletin No 24 of February 2023. The Duty Coroner can be contacted by phone, or via email.

What are the key questions for a coroner?

From the time a coroner assumes jurisdiction in a case, which is usually when a death is reported, their investigation is focused on answering the following primary questions:

  • has a person died?

  • if so, can that person be identified?

  • when did they die?

  • where did the death take place?

  • what was the direct cause of death?

  • what was the manner of death?

These questions may lead to other questions relating to health or safety issues, but they are the starting points for all coronial proceedings relating to deaths.

The difference between cause and manner of death

“Cause of death” refers to the “real cause of death … not the mode of dying”, and not the terminal cause — in the end we all die because our hearts and brains stop functioning: Ex p Minister of Justice; Re Malcolm [1965] NSWR 1598.

“Manner of death” refers to the circumstances of the death, that is, the way in which it came about. In seeking to answer this however, coroners are cautioned against undertaking an overly broad inquiry. R v Doogan; Ex p Lucas-Smith (2005) 158 ACTR 1 at [28] states that an inquest is not a:

wide-ranging inquiry akin to a Royal Commission, with a view to exploring any suggestion of a causal link, however, tenuous, between some act, omission or circumstance and the cause or non-mitigation of the [death].

See also Harmsworth v State Coroner [1989] VR 989.

The primary distinction to be made between the two concepts is that cause of death is a physiological concept, whereas manner of death relates to the circumstances in which a death took place. J Abernethy et al, Waller’s Coronial Law and Practice in NSW, 4th edn, LexisNexis, Sydney, 2010 (Waller) at [81.16] provides the following illustration of the distinction:

For example, if one is inquiring into a death following a fall from a height, the cause of death would be the injuries sustained in the fall. The manner of death would be how that fall came about — Did the deceased jump, was he pushed or did he or she fall accidentally?

[44-040] Post mortem investigative procedures: coronial directions

Note:

For all NSW reportable deaths, it is a practice of the Coroner’s Court for the State Coroner and Deputy State Coroners at Lidcombe to provide the directions for the initial medical investigative procedures. Ordinarily a regional magistrate will not be required to make any such directions.

A coroner may, by written order, direct a qualified medical practitioner to conduct a post mortem investigative procedure, including a post mortem examination, if it is necessary or desirable to do so to assist in the investigation of a death where the coroner has jurisdiction: s 89.

Post mortem examinations are not necessary in every case: see Coronial certificates. Their purpose is to assist coroners to determine the matters about which they are required to make findings — namely the identity of the deceased person, and the date, place, cause and manner of death: see s 81(1).

Importantly, a coroner’s directions concerning post mortem investigative procedures must reflect the principles in s 88(1) that the dignity of the deceased person is respected, and s 88(2) that the least invasive procedure that is appropriate be used to determine cause and manner of death: see J Hatzistergos, second reading speech, Coroner’s Bill 2009, NSW Legislative Council, 16 June 2009.

Although a coroner is guided by the medical investigator’s advice and recommendations, consistent with the principle in s 88(2), the coroner is not bound to accept them if satisfied that a less intrusive procedure will establish the cause or manner of death on the balance of probabilities: see second reading speech, above, at [25].

A coroner should also consider the relatives of the deceased person, and ensure that their distress is not unnecessarily exacerbated by the coronial process, including by the making of post mortem investigation directions. Most families expect that the body of their loved one will be released to them as soon as possible. They also expect that their cultural or religious values will be respected. It is not uncommon for families to object on cultural grounds to a direction for an autopsy, or to procedures which will delay burial or cremation: see Objections to post mortem directions.

The range of post mortem directions

Section 89(1) sets out the post mortem investigation directions that a coroner may make. Examples of the directions that may be made include:

  • a coronial autopsy, understood as the opening and examination of the deceased’s person’s three cavities, namely, the head, thorax and abdomen

    Note:

    Consistent with the “least invasive procedure” principle in s 88(2), the opening and examination of one or two of the cavities may be sufficient for the pathologist to identify the medical cause of death, in which case the pathologist will not proceed further.

  • an external examination of the body

  • the taking and testing of blood or tissue samples for toxicological analysis

  • the taking and testing of tissue samples for microscopic examination, and

  • a review of the medical records of the deceased person.

Although s 90(3) authorises the retention of small samples of certain bodily tissue, the directions which s 89 authorises do not include the power to direct that a whole organ be retained and examined. There will be cases where, for example, the medical investigator (usually a forensic pathologist) wishes to retain and examine a deceased person’s brain. Section 90(5) empowers the coroner to direct this, provided they are satisfied this is desirable or necessary to assist the investigation into the manner or cause of death. A coroner needs to consider this step carefully, given its very invasive nature. Further, senior next of kin must be notified of such an order as soon as reasonably practicable: s 90(6).

Note:

Section 88A(1) empowers a pathologist to undertake the following non-invasive preliminary examinations without a coronial direction, set out in s 88A(2):

  • visual examination (including a dental examination)

  • reviewing personal and health information

  • taking and testing samples of bodily fluid, including blood, urine, saliva, vitreous humour and mucus (which may require an incision be made)

  • imaging of the remains, including by way of computed tomography (CT scan), magnetic resonance imaging (MRI scan), x-rays, ultrasound and photography

  • taking and testing samples from the surface of the remains, including swabs from wounds and inner cheek, and samples of hair, from under fingernails and from skin

  • fingerprinting, and

  • any other procedure that is not a dissection, the removal of tissue or invasive in any other way.

Matters to take into account

Coroners must consider whether it is necessary or desirable to make post mortem investigative directions. Factors to consider include:

  • whether cause of death can be established without a post mortem examination

  • whether cause of death can be established with a less invasive procedure than the one recommended

  • whether a family objects to, or desires, a post mortem examination: see Objections to post mortem directions

  • whether there are medical treatment concerns which may have contributed to the death, and which a post mortem examination may elucidate,

  • whether the circumstances of the death are suspicious.

Objections to post mortem directions

A senior next of kin or relative may object in writing under ss 96 and 99 to a post mortem investigation direction or the authorisation to retain a whole organ. Objections are made for a variety of reasons, which may include religious, cultural and social reasons, and a coroner needs to take these into account when determining whether the direction is necessary or desirable to assist in the investigation of the death.

If a senior next of kin or relative objects to a post mortem direction, the coroner must consider whether a less invasive procedure will be sufficient to establish the person’s cause and manner of death: see s 89. The coroner should consult with the pathologist, and work closely with the CISP officer who has been assigned the case. The CISP officer will engage in discussions with the relative/s, explaining the reasons for the proposed direction, and conveying to the coroner the family’s feelings and wishes. In this manner, the great majority of objections to post mortem directions are able to be resolved. However, if they are not able to be resolved, s 97 provides a mechanism for appeal to the Supreme Court.

If a coroner determines, after considering an objection, that the post mortem examination or organ retention is necessary or desirable, senior next of kin are to immediately be notified of the decision, the right to apply to the Supreme Court for an order that it not be conducted, and that a post mortem examination may be conducted after 48 hours from the time they are given the notice: s 96(3), (4).

The post mortem report

In most cases, the cause of death is revealed in the post mortem report. Pathological practice in post mortem reports is to list the cause(s) of death in descending order.

In Section 1, the post mortem report lists the direct cause of death followed by antecedent causes, that is, morbid conditions giving rise to the direct cause, with any underlying condition stated last.

Section 2 will list other underlying conditions possibly contributing to the death, but not relating to the disease or condition which caused it.

The post mortem report annexes ancillary reports, which can include a radiology report, analytical toxicology report and neuropathology report.

Coronial certificates

Many reportable “natural causes” deaths only require a non-invasive preliminary examination to establish cause and manner of death. The pathologist is often able to identify a cause of death based on visual examination, CT imaging and, in some cases, the deceased person’s health care records. In these circumstances the pathologist will usually recommend an inquest be dispensed with and that a coronial certificate be issued.

It is a practice of the Coroner’s Court, if it is appropriate in the circumstances, to issue a coronial certificate: see s 89(6) and the discussion below. Assistant coroners may also do so: s 15(1)(b)(iii).

The coronial certificate records the cause of death, together with the date and place of death. A high proportion of matters are finalised by this means.

It is important for families to be aware that the issuing of a coronial certificate means there will be no further medical investigation into the cause of death.

Note:

If the death falls within one of the categories within s 24, a coronial certificate can only be issued by the State Coroner or a Deputy State Coroner: s 22.

The Act does not expressly provide for the issue of coronial certificates, however, s 89(6) provides a coroner has the power to dispense with a post mortem examination if, after obtaining advice from police officers and medical practitioners, they are satisfied that the death was the result of natural causes, and a senior next of kin has advised that the family do not want any form of autopsy to be conducted.

Section 89(6) can also be utilised in cases where the pathologist is of the view that the person died of natural causes, but they are unable to ascertain the exact cause of death. This may be the case where the person’s body is significantly decomposed, or where more than one medical condition appears to have caused the death and the pathologist cannot ascertain which was predominant. If a coroner is satisfied that:

  • there are no suspicious circumstances

  • the death is one of natural causes, and

  • the family are content with this course of action,

a coronial certificate may issue giving the cause of death as “Unascertained natural causes”.

The issuing of a coronial certificate does not preclude a coroner from investigating other issues, including the care and treatment provided to the deceased person and whether it contributed to their death.

[44-060] The coroner’s other investigative powers

The Act provides extensive powers for the coroner to investigate deaths prior to inquest. In cases where an inquest is not mandatory, these powers will most often be exercised with a view to determining whether an inquest is required.

The police investigation

A coroner has power under s 51(2) to order a police investigation of a death.

In some cases, where the circumstances of the death are clear and are not suspicious, and it appears that the death is natural, a coroner may decide not to order a brief of evidence.

Where the death appears to be from unnatural causes (for example, suicide or accident) but there appear to be no suspicious circumstances, an “officer in charge (OIC) only” brief may be ordered, which consists of an investigating police officer’s statement. This statement will assist the coroner determine such matters as:

  • whether the deceased person acted with the intention of bringing about their own death

  • where and when the deceased person was last seen or heard so as to establish the date or date range of death, and

  • whether the family asks the coroner to consider an inquest, and the reasons why.

In other cases, a full brief should be ordered. Examples of such cases include suspicious deaths, deaths in police operations, deaths in custody, correctional centres or mental health facilities (unless due to natural causes), deaths in which significant medical issues arise, and deaths of children.

Coronial investigation scene orders

Coroners do not issue search warrants. They have power to issue coronial investigation scene orders: ss 39–45.

Police investigators may, however, apply for search warrants in appropriate cases in the ordinary way under the Law Enforcement (Powers and Responsibilities) Act 2002.

The threshold for a coronial investigation scene order is low. A coroner may issue an order if they consider that a coronial investigation should be conducted in a certain place. By implication, however, a rational basis for that view is required.

Coronial scene orders are usually sought by police officers where they have been unable to secure consent to enter a property in which a person has died, or which is related in some other way with the death. Notwithstanding the low threshold for such an order, as these are coercive orders, it is important to establish that the investigating police officer has made reasonable attempts to obtain consent to investigate the circumstances of a person’s death.

An order may be made by phone (s 40(1)), which is later confirmed in writing to police: s 40(6).

Section 43(1)(a)–(r) and (2) outline the powers a police investigator may exercise at the coronial investigation scene. They are similar to crime scene powers under the Law Enforcement (Powers and Responsibilities) Act. In summary, they enable the investigators to close off and control the scene, to remove persons from the scene, to perform any necessary investigations on the scene, to conduct tests, to dig, to remove parts of structures and to seize and remove body parts and other evidence.

Records and policy documents

A coroner does not have power to issue a subpoena before an inquest is ordered. The coroner does have the power under s 53 to give notice in writing to a person to produce documents or things which may assist the coroner’s investigation.

This power is regularly exercised to obtain medical records. It can also be used to obtain policy and procedure documents which govern relevant procedures within prisons, hospitals, and the NSW Police Force. The power is subject to claims of privilege including the privilege against self-incrimination: s 53(3), (4). However, this privilege cannot be claimed in respect of medical records: s 53(4); see The privilege against self-incrimination.

[44-080] The decision whether to hold or dispense with an inquest

Assessing the coronial brief

In the case of deaths of First Nations persons, it is recommended that from first receipt of the matter the coroner make contact with an ACISP officer at the Lidcombe Coroner's Court. Often the ACISP officer will have already made contact with the deceased person’s family. The ACISP officer will be an important point of contact with the family, keeping them advised of progress and updates, and ensuring that their concerns about the person’s death are made known to the coroner at an early stage.

The police investigation brief and the medical evidence, including a post mortem report, may not be available to the coroner for a period of months after a death.

Once these are available, the coroner will assess the material to determine if it adequately deals with the principal questions a coroner must seek to answer. That is, is the evidence sufficient to establish the identity of the person who has died, and the date, place, cause and manner of their death: see s 81(1).

Note:

Unless there is a forensic reason to do so, a coroner need not view photos of the deceased person and the death scene.

Other questions a coroner should consider when analysing the brief are:

  • whether the police investigator regards the circumstances of the death as suspicious

  • whether other lines of inquiry should be followed

  • whether concerns raised by the family about the circumstances of death have been addressed (see Family concerns)

  • whether the investigator has made recommendations for remedial action, and

  • whether the case raises issues of general public interest, particularly in relation to health or safety.

In many cases the basic material on the file (autopsy report, OIC statement, and advice whether family seeks an inquest) will be sufficient to form the view that an inquest is not warranted, and to dispense with one (unless an inquest is mandatory). In over 97% of NSW cases, inquests are dispensed with because the answers to the above questions are relatively clear, or they become clear with further investigation.

In other cases, the appropriate decision will be to direct that further investigations take place, and with the benefit of further information, a coroner may be satisfied that an inquest is not required, and can be dispensed with.

Note:

Examples of situations where further investigation may be required are set out below at Family concerns, Concerns about medical treatment and Concerns about mental health care.

When is an inquest required?

In the following circumstances an inquest is mandatory pursuant to s 27(1):

  • suspected homicides, not including suicides: s 27(1)(a)

  • cases in which a person dies in custody or as a result of a police operation: ss 23 and 27(1)(b)

  • when the evidence does not sufficiently disclose whether a person has died: s 27(1)(c)(i)

  • when the evidence does not sufficiently disclose the identity of the person who has died, or the date, place, cause or manner of their death: s 27(1)(c)(ii) and (d)

  • when the Minister or State Coroner directs that an inquest be conducted: ss 28 and 29.

In the first two categories above, the inquest must be conducted by the State Coroner or a Deputy State Coroner: s 22.

Cases where it is not clear that a person has died

This is usually the case with missing persons, as the person’s body has not been found, and a coroner will need to determine whether the missing person is alive or dead. If the evidence in the police brief does not enable the coroner to come to a conclusion about this on the balance of probabilities, an inquest must be conducted: s 27(1)(c)(i).

Cases where cause and manner are not sufficiently disclosed

It is not uncommon for an autopsy report to provide no clear cause of death. This may be because the degree of decomposition of a body does not enable proper examination of the body’s organs and tissue. In other cases, the pathologist may not be able to ascertain a cause of death because certain fatal events such as epilepsy and cardiac arrhythmia leave no pathological signs.

However, it will not be necessary in all such cases to proceed to an inquest. A coroner may consider:

  • seeking a specialist medical opinion as to the cause of death. This course can be discussed with the forensic pathologist, who will advise whether it is likely to yield results and, if so, the appropriate medical discipline. See Concerns about medical treatment.

  • whether the medical evidence is sufficient to establish cause of death on the balance of probabilities

  • seeking the family’s advice as to whether they would be satisfied with a finding of “unascertained natural causes”. This of course will only be an option where the coroner is satisfied that the death is one of natural causes. If the post mortem examination finds no evidence of fractures, toxicological irregularity, or other signs of trauma, this may point to the likelihood of a natural causes death.

If the cause and/or manner of death remain undetermined, an inquest is required to be held: s 27(1)(d). In these circumstances, it may only be necessary to call evidence from the officer in charge and the pathologist and, if the cause and/or manner of death are unable to be determined, such a finding may be made. See Open findings.

When may a coroner dispense with an inquest?

Except where an inquest is mandatory, a coroner has a wide discretion to dispense with an inquest: s 25.

Senior next of kin should always be asked whether they wish an inquest to be conducted and, if so, the reasons why. This advice should be sought by the officer in charge when compiling the coronial brief. See Family concerns.

A coroner will ordinarily dispense with an inquest where the identity of the person and the date, place, cause and manner of death are sufficiently disclosed on the evidence, there is no particular issue of public health or safety to address, there are no suspicious circumstances, and no compelling request for an inquest has been made.

See The “Reasons for dispensing with an inquest” form.

Family concerns

When determining whether an inquest should be dispensed with, a coroner should take into account any concerns raised by the family regarding the circumstances of the death. Relatives rightly expect that their concerns about the death will be carefully considered.

A coroner should always respond to family communications with respect and courtesy, and should direct further investigations if these are warranted. A coroner also needs to consider whether to respond to the family in writing, or whether it is more appropriate to involve a CISP officer in the communications with the family.

If a coroner decides that a family concern warrants further investigation, the family should be informed of this, and that the purpose of the investigation is to determine if an inquest is warranted.

In deciding whether a family concern requires further investigation, coroners need to consider the following matters.

The nature of the concern

Is the concern sufficiently or at all related to the cause and manner of death? If it is, further evidence may be needed, such as witness statements, an expert review of the medical care given, or a response from a hospital or health service as to the specific matter which appears to have contributed to the death. See Concerns about medical treatment.

In cases where family members are unhappy with their interactions with hospital staff, or are concerned with medical procedures and/or conditions that are not connected to their relative’s death, the coroner should acknowledge those concerns, and explain they are outside the scope of the coroner’s role. In such cases, if appropriate, the family can be provided with information regarding the Health Care Complaints Commission or the Aged Care Quality and Safety Commission for example.

In other cases, a family may request an inquest because they would like to know more about how their relative died. It may be helpful to provide them with the autopsy report (with a caution that it may be distressing to read) and/or a copy of the OIC’s statement, together with a letter explaining that these documents provide the answers to the questions that a coroner is required to answer.

If family concerns are expressed in very vague terms or with insufficient clarity, they may be asked to clarify their concerns and outline how their concerns relate to the known cause of death.

Will an inquest provide answers to the family’s questions?

It is not always the case that additional investigations or an inquest will shed further light on what is distressing the family. For example, it may not be possible to be more precise about when a death occurred, or why a person took the heartbreaking decision to end their life. Similarly, the coroner may assess that further enquiries will not be able to fill gaps in the evidence as to a deceased person’s last known movements.

Having carried out further investigation in response to family concerns, a coroner may be of the view that outstanding issues are resolved, or that further enquiries will not resolve them. In this case, the coroner should prepare a letter to the family, for signature by the Registrar, explaining what the investigations have revealed and why there is no basis for further investigation or an inquest. It may be helpful to attach a copy of further evidence obtained, for example, an expert medical report.

In addition, it may be appropriate to engage a CISP or ACISP member to help explain these decisions to the family.

Concerns about medical treatment

Family members sometimes seek an inquest because they believe their relative’s clinical care was deficient, or they are of the view that hospital staff or their GP ought to have detected the medical condition which was the cause of death.

The coroner needs to determine whether there was any deficiency in the person’s medical care, and if so whether it caused or contributed to their death. This might not be evident from the coronial brief and autopsy report.

In such cases, coroners might commence with a discussion with the pathologist who conducted the post mortem examination. If the pathologist believes it is within their expertise, they will usually assist with advice as to:

  • whether anything appeared to have gone wrong with the medical procedure and the post-procedure care

  • whether there are known risks for the procedure which would have been difficult to avoid

  • whether, prior to the procedure, there were appropriate assessments of the person’s fitness for the surgery, and

  • whether in the case of GPs, the medical condition ought reasonably to have been detected earlier.

If a pathologist considers an area to be outside their area of expertise, they will usually advise what specific further medical investigation might assist, and identify the appropriate medical specialty.

Coroners can also obtain the person’s hospital notes and review them, in particular the deceased person’s discharge summary. This may be appropriate where the hospital admission was brief, or the medical condition was not complex. In these circumstances the coroner may be able to form their own view as to whether there is any basis for the family’s concern.

Serious adverse event reviews

If further medical investigation appears necessary, a useful first step is to obtain a copy of any serious adverse event review (SAER) (formerly a root cause analysis report) into the circumstances of a hospital death: see Health Administration Act 1982, s 21A. This is an investigation and analysis procedure used within the NSW public health system, and many private health facilities. It aims to identify if a death was caused or contributed to by a serious systemic problem, and if so, to make recommendations to reduce the risk of future such incidents. Coroners can obtain a copy of the SAER by means of a s 53 order to the relevant hospital or NSW Local Health District.

Importantly, pursuant to s 21P of the Health Administration Act the contents of a SAER are not admissible in legal proceedings, including coronial inquests. However, family members will ordinarily have received a copy of it. For coroners they are a useful way to find out if systemic problems have been identified as relevant to the death, and if they have been rectified. If the hospital or health care facility has implemented the recommendations, there may be nothing to be gained from further investigation or an inquest.

Another step is to engage an independent medical expert to review those aspects of the hospital treatment that are of concern. See Obtaining expert reports.

If as a result of these steps the coroner forms the view that there were no deficiencies in clinical care, or that contributory systemic deficiencies have been addressed, the coroner should prepare a letter for the family explaining the investigations that have been undertaken, and how they establish that there is no basis for an inquest.

However, if there is to be an inquest, the coroner needs to ensure that the medical issues are confined to those which are necessary for coronial findings. Although there is likely to be some degree of overlap, the inquest is not an opportunity to test the waters for a civil action in medical negligence.

Obtaining expert reports

In some cases, it may assist to obtain an independent expert’s report to provide an opinion as to the cause of death or the adequacy of clinical care given: see State Coroner’s Bulletin No 20 of 2022. The coroner should first consult with the Duty Coroner as to why an independent expert’s report is required, and what the proposed questions to the expert would be. It is recommended that the coroner also obtain assistance from the Duty Coroner to identify suitable experts. If an expert’s report is to be obtained, the approval of the Registrar is required if the proposed cost exceeds $6,000: State Coroner’s Bulletin No 20 of 2022.

The expert’s review can usually be conducted on the basis of the hospital records. While the expert would probably find it useful to also have statements from the treating clinicians, gathering medical statements is a lengthy and expensive process, and may turn out to have been unnecessary if the expert review does not identify significant deficiencies.

If the coroner decides to engage a medical expert, the SAER should not be among the materials provided to the expert as this may influence their opinion. Further, as the SAER’s contents are inadmissible in an inquest, this could create problems if the expert witness’s report and/or oral evidence is relied upon in the inquest.

Concerns about mental health care

Many reportable deaths occur against a background of chronic or acute mental illness.

Suicides are deeply distressing for families. Many families have been supporting their relative or partner for years and have done their best to keep them safe. Suicide deaths can be distressing for coroners as well.

Sadly, it is not uncommon for suicide deaths to occur within hours or days of a person’s discharge from a mental health unit. When this happens, the family is often bewildered and frustrated by the decision to discharge their relative.

Whether the decision to discharge the deceased person requires further investigation must be decided on a case-by-case basis. A decision to involuntarily detain a person is governed by the provisions of the Mental Health Act 2007. A treating psychiatrist may have little difficulty establishing that a person suffers a mental illness and requires care and treatment. However, when considering involuntary detention, a psychiatrist must be satisfied that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available. After a person has had a period of admission and has achieved a degree of stability, the psychiatrist may form the view that the test for maintaining them in involuntary detention can no longer be met.

It may be appropriate for the coroner to focus instead upon the adequacy of the discharge plan that has been prepared for the person. This sets out the plans that have been made for their mental health care and support, once discharged into the community. The discharge plan (and clinical notes for the admission) can be obtained with a s 53 order.

If appropriate, the coroner can also consider seeking a review by an expert psychiatrist of the mental health care provided; see Obtaining expert reports. The Duty Coroner can assist with this decision and the choice of expert. If an expert’s report is critical of aspects of the person’s care, enquire with the hospital or mental health service if they have taken steps to address these issues.

Certain mental health-related deaths require a higher level of scrutiny. These include:

  • suicides occurring within the mental health facility itself. A SAER report is likely to be available to assist the coroner.

  • suicides of adolescents. If a young person has taken their life shortly after discharge, consider investigating the sufficiency of the discharge plan, and whether the young person’s parents or carers were advised of strategies to keep the young person safe in the hours and days post-discharge.

Where the death occurs while the person was an involuntary patient, the matter is to be transferred to Lidcombe Coroner’s Court.

Concerns about socio-medical issues

Sometimes families raise concerns about wider socio-medical issues such as the practice of doctor-shopping for medications, the inadequacy of mental health services, and the effects of cyber-bullying. These are often recurring issues and may have broad relevance to the manner of the person’s death. In such cases, the coroner should contact the Duty Coroner to discuss whether relevant recommendations have previously been made in respect of the issue to inform the decision of whether an inquest should be held.

The “Reasons for dispensing with an inquest” form

The great majority of cases will not proceed to inquest and will be dispensed. The State Coroner has directed that in all cases in which inquests are dispensed with, a coroner must provide written reasons which are placed on the coronial file: see State Coroner’s Bulletin No 3 of May 2018.

Ordinarily the “Reasons for dispensing with an inquest” form (the Dispense form) need not exceed 3–4 paragraphs. It should evidence that the coroner:

  • has fulfilled their statutory duty of determining the identity of the deceased person and the time, place, cause and manner of their death

  • is satisfied there are no suspicious circumstances which warrant further investigation

  • is satisfied there is no scope for making recommendations in the interests of public health and safety, and

  • in cases where the family has sought an inquest, in brief, why there is no basis for one.

It is preferable to refer to the deceased person by their name, rather than use the term “the deceased”.

If the person was already deceased when found, include when they were last seen or heard from. This is usually the best evidence of when the person died, or the range of dates within which they died.

Briefly summarise the conclusions within the post mortem report. This is the best and often only evidence as to cause of death.

In cases of suicide, the Dispense form should briefly set out the coroner’s reasons for finding that the manner of death was self-inflicted and intentional.

If the coroner has concluded that a cause of death can be established on the balance of probabilities, notwithstanding that the post mortem report finds the cause to be “Unascertained”, the Dispense form should briefly set out the coroner’s reasons for reaching this conclusion.

Once the coroner has prepared and signed the Dispense form, it is a practice of the Coroner’s Court to print it on yellow paper and place it on the coronial file. It is an essential record in circumstances where a person requests, pursuant to s 29(2), that the State Coroner review the coroner’s decision not to conduct an inquest.

Release of the Dispense form

The coroner must, on the request of a person who, in the coroner’s opinion, has a sufficient interest in the circumstances of the death, provide their written reasons for dispensing with an inquest to that person: s 26(1)(c). If the coroner refuses the request to provide the reasons to a person, they are required to give written reasons for the refusal: s 26(2).

The Act does not define what a sufficient interest is, but s 57(3) deems a relative to be a person with a sufficient interest to appear in an inquest. It would be consistent to conclude that a relative has a sufficient interest to request the coroner’s written reasons for dispensing with an inquest.

“Relative” is defined in s 5 to include spouses, parents, guardians, children and persons standing in loco parentis of the deceased. If none of those people exists, a sibling of the deceased person is deemed to be a relative for the purposes of the Coroners Act.

Persons other than relatives may also have a sufficient interest, but this will depend on the individual circumstances of the case: see Access to coronial material.

Is a coroner functus officio after dispensing with an inquest?

If fresh evidence or facts are produced to a coroner who has previously dispensed with an inquest, a coroner may commence an inquest if of the opinion that it is necessary or desirable in the interests of justice to do so: s 25(3).

However, even if no fresh evidence or facts are produced, a coroner may commence an inquest having previously dispensed with one. As no coronial proceedings have taken place, and no determinations have been made following an inquest, a coroner who dispenses with an inquest would not appear to be functus officio: Terry v East Sussex Coroner [2002] QB 312.

Senior next of kin disputes

Section 6A(1) defines the deceased person’s “senior next of kin” by way of a list of categories of person (if available) in cascading order of eligibility from (a) their spouse, to (b) their adult children, to (c) their parents, to (d) their adult siblings, to (e) their executor or legal personal representative. Some of these categories potentially identify more than one person as senior next of kin and, as the Act does not give priority to any one person within a particular category, more than one person may meet the definition of senior next of kin. The Act also does not provide a coroner with the power to determine who, within a particular category, will be recognised as senior next of kin. Following are some common disputes and ways of potentially resolving them.

Where multiple persons within a category satisfy the definition of next of kin and there is a dispute between them as to who should be recognised, the coroner may first seek assistance from a CISP officer who can encourage those persons in dispute to cooperate with each other in selecting a senior next of kin. These disputes are often resolved in this way. However, if they are not, the coroner does not have the power or duty to determine that only one senior next of kin will be recognised, and those in dispute may be able to seek declaratory relief in the Supreme Court.

Where a person in one category (for example, a parent or adult child) disputes the legitimacy of the relationship between the deceased and a person in another category higher in the order of eligibility within s 6A(1) (for example, a de facto partner), it is a practice of the Coroner’s Court for the coroner to make a determination as to whether the person was in a de facto relationship at the time of death. In such cases, the coroner may ask the Registrar to invite the person questioning the relationship to submit their reasons for doing so in writing, and for the de facto partner to respond in writing.

The definition of “spouse” in s 4 includes a de facto partner as defined in s 21C Interpretation Act 1987. The meaning of “de facto partner” includes a person in a de facto relationship with another person, and a person is in a de facto relationship with another person if they have a relationship as a couple living together, and they are not married to one another or related by family: s 21C(1)–(4) Interpretation Act. In determining whether two persons have a relationship as a couple, s 21C(3) Interpretation Act provides that all of the circumstances of the relationship are to be taken into account, including the matters listed in that provision. It may be helpful to advise persons involved in such a dispute that the role of senior next of kin for coronial purposes has no bearing on matters of inheritance.

Once the coroner has determined senior next of kin, if appropriate, it is recommended they ask a CISP officer to contact the senior next of kin to encourage them to cooperate with the other person in relation to funeral arrangements and to keep the other person informed of developments relating to the deceased person. Further, once the coroner determines the matter, the other person may be able to seek declaratory relief in the Supreme Court.

Access to coronial material

“Coronial material” covers a broad range of material. It includes post mortem reports, witness statements, medical records, hospital records, photographs, videos, evidence transcripts, exhibits, and suicide notes.

If a coronial matter proceeds to inquest, the principles of natural justice require that adequate reasons be given by a coroner if they refuse to provide evidence to a party of sufficient interest: Musumeci v Attorney General of NSW (2003) 57 NSWLR 193. This may be the case where there is a genuine risk that releasing the material will prejudice an ongoing police investigation, a future trial, or the integrity of a person’s evidence.

Although s 65 generally governs the provision of the coroner’s file (or part thereof) to other persons, the discussion below regarding the provision of material to family members is in accordance with the procedures of the Coroner’s Court.

Coroners frequently receive requests for release of coronial material during the investigative phase of a matter, or in cases where it has been decided not to conduct an inquest. The following are common examples.

Family requests for coronial material

The post mortem report and OIC statement

In the investigative phase, it is usual to provide senior next of kin with a copy of the post mortem report and/or OIC statement, if requested. As families often seek an inquest because they want to know more about how their relative died, providing these core documents can help resolve these issues.

If senior next of kin makes such a request, a copy of the post mortem report and OIC statement should ordinarily be provided once they are available. The post mortem report should be accompanied by a letter cautioning that the contents may be distressing to read, and suggesting that it be read in the company of a GP or counsellor.

Post mortem reports and statements should generally not be provided to senior next of kin if the death is suspicious and the requestor, or a close relative, is a person of interest in the police investigation.

Other coronial material

In the ordinary course, a coroner will, after reviewing the contents of the coronial brief, provide a copy of it to senior next of kin upon their request. The copy of the coronial brief provided should not contain death scene photographs or videos which depict the deceased person and they should be advised that these have been excluded from the material provided.

Occasionally senior next of kin asks to view such material. For some families, viewing it is an important part of their grieving process. If the coroner decides to grant access, CISP officers can provide advice about facilitating this. It is highly advisable that the family view the material in the presence of a CISP officer, or a local counsellor.

Suicide notes

Other than exceptional cases, family members and friends should be permitted to have copies of letters or notes that the deceased person has left for them. In addition, these documents sometimes include the wishes of the deceased person as to funeral and testamentary arrangements, in which case a decision about their release needs to be made quickly.

If a note or letter is addressed to a specific person, a copy should be released to that person only, unless they agree to it being released to others. If there is no specific addressee, coroners should use their discretion as to who can have access.

Sometimes the letters or notes contain comments that may be hurtful to the addressee. This of itself is not a reason to refuse access. However, in such circumstances, it is appropriate to ask a CISP officer to prepare the addressee for this, or to forward the document with a warning that its contents may be distressing.

The original letter or note can be provided to the addressee once the matter is finalised.

Requests from other family members

Often family members other than senior next of kin, such as parents, siblings, former partners, and adult children, ask for access to coronial material. This is usually on the basis that the senior next of kin is not willing to share information with them.

Coroners need to keep in mind that pursuant to s 57, a relative is considered to be a person with sufficient interest in the proceedings. If a coroner receives such a request, it is appropriate to contact senior next of kin to ask if they are opposed to such access and if so, their reasons. However, it is a matter for the coroner whether those reasons justify denial of access to the family member.

Requests from other individuals and groups

An applicant for coronial material who is not a family member must request access pursuant to s 65. Coroners are exempt from the provisions of the Privacy and Personal Information Protection Act 1998 while carrying out coronial functions: s 6 Privacy and Personal Information Protection Act 1998.

Requests for coronial material are often made by media organisations, researchers, insurance companies, and law firms interested in actions arising out of the death. These requests require careful consideration. Coronial files include very personal information about the deceased person and others, as well as material that is very likely to distress grieving family members. Therefore, coroners need to be sensitive both to the feelings of relatives, and to the potential for gross breaches of privacy.

The request for access is to be granted if the coroner thinks it is “appropriate” under s 65(2) having regard to the non-exhaustive factors in s 65(3). These are:

  • the principle of open justice

  • the effect on a deceased person’s relatives of disclosure

  • the connection the person requesting access has with the proceedings

  • the reason why access is sought, and

  • any other relevant matter.

During and after an inquest, media organisations may want access to the coronial file in the interests of fair and accurate reporting of the proceedings. Access should ordinarily be restricted to tendered material and caution should be exercised in relation to the release of visual and audio material. Copies of photographs, videos or recordings of the death scene which depict the deceased person should not be released.

Ensure that the media organisation is aware of any orders for non-publication: see Non-publication orders.

When an inquest is not held, law firms and/or insurance companies may want access to coronial material. Usually this is for the purpose of advancing civil proceedings, or assessing whether such an action might be commenced, or responding to such actions. It is debatable whether such a purpose is related to advancing a legitimate interest in the coronial proceedings.

Research bodies may seek access to coronial material for the purpose of advancing medical knowledge, or enhancing systems of clinical governance. It would be appropriate to advise senior next of kin of the request, and canvass their views upon it.

There is a fee payable for provision of documents: s 65(2)(b).

Note:

Generally, the fee is not required of family members who request information.

[44-100] Conducting an inquest

How does it differ from other court cases?

Inquests are inquisitorial in nature, resembling commissions of inquiry rather than criminal or civil litigation. Inquest findings do not bind participants, allocate criminal or civil liability, or declare rights as between parties. They are fact-finding proceedings.

Coroners may be likened to investigating magistrates. They determine the issues to be examined at the inquest, and give directions for investigation to police and other investigators. They are assisted by, and work with, a police advocate or counsel assisting.

There are no parties to the inquest as the term is usually understood. Rather, there are persons who have a sufficient interest in the circumstances of the death in question. Apart from relatives who have a statutory right of appearance pursuant to s 57(3), all other persons appear by leave only: s 57(1). A coroner must be satisfied that a person seeking leave to appear has a sufficient interest: see Who may appear at an inquest?.

The coroner is not bound by rules of evidence or procedure other than the requirements of procedural fairness: s 58(1). The Evidence Act 1995 does not apply in coronial proceedings: Decker v State Coroner of NSW (1999) 46 NSWLR 415.

Note:

for matters falling within s 23, that is deaths of persons in police or correctional custody, and deaths as a result of police operations, Practice Notes 2 and 3 have set case management directions which are aimed at their timely setting for inquest.

Who may appear at an inquest?

Persons with sufficient interest may be granted leave to appear in inquests and inquiries: s 57.

Unless exceptional circumstances dictate otherwise, relatives of the person who is the subject of the inquest are presumed to have standing: s 57(3); see also Annetts v McCann (1990) 170 CLR 596. One of the interests families represent is the reputation of their deceased relative: Annetts v McCann at 599.

A person with a sufficient interest will generally be a person, natural or corporate, whose reputation may be scrutinised or subject to adverse comment in a coroner’s findings, or to whom recommendations may be made. Persons with sufficient interest are often police officers, treating doctors and nurses, and persons of interest in suspicious deaths.

Insurers would not ordinarily be regarded as having a sufficient interest, if the only question for them is whether ultimately they may be liable to pay compensation to an insured person. On the other hand, by virtue of their subrogated rights, they may have a direct interest in examining a person in relation to a suspicious fire.

Parties must seek leave to appear and demonstrate that they have an interest to protect by appearing. If they cannot do so, they may be allowed to attend the inquest or inquiry with a watching brief.

Persons granted leave to appear are entitled to be legally represented.

The date and place of the inquest

When fixing a date for the inquest, it is important to consult with the deceased person’s family. Aside from the question of convenience, inquests can be very painful experiences for the family, and they may have good reason for wishing to avoid certain dates — for example, the deceased person’s birthday or the anniversary of their death.

Generally, the matter will be listed in the courthouse within the area where the death occurred.

Only the State Coroner can order that a jury be called, and then only in an inquest or inquiry over which they preside and consider that there are sufficient reasons to justify a jury: s 48.

Preparing for the inquest

The basic tasks for preparing an inquest are as follows:

  • analysis of the brief and identification of the issues and witnesses to be called

  • engagement with CISP or ACISP where appropriate, for liaison with, and support for, the family: see The family at the inquest

  • consultation with counsel assisting or the police advocate to ensure that all relevant issues have been identified

  • identification of the need for further evidence, including expert evidence

  • identification of persons who may have a sufficient interest in the proceedings. They must be notified in writing that their interests may be adversely affected by the anticipated evidence with a suggestion they seek legal advice and representation

  • providing a copy of the brief to persons with sufficient interest, unless there is a compelling reason not to do so: see Access to coronial material. They should be invited to identify any issues and evidence they wish the coroner to consider, and to nominate any witnesses they request the coroner to call for examination, providing their reasons. This may include evidence from expert witnesses in reply to evidence within the coronial brief

  • send draft issues list and draft witnesses list to the persons with sufficient interest

  • in complex matters, setting a directions hearing to resolve interlocutory issues or controversies, and timetables for obtaining and serving further evidence. Section 49 provides that a coroner may issue case management directions. See also Practice Notes 1, 2 and 3

  • in matters where police officers may be subject to adverse comment, to prevent a perception of conflict of interest between police advocates and the officers under examination, coroners should consult the State Coroner to request that the Crown Solicitor’s Office provide counsel assisting

  • in complex matters, consider requesting the assistance of the Crown Solicitor’s Office

  • consider conducting an informal view as it may enable a better understanding of the evidence. This is distinct from a formal view during the inquest which then becomes part of the evidence. The intention to conduct an informal view should be notified to the persons of sufficient interest, consistent with the principles of procedural fairness

  • if the case involves questions of public health or safety, the coroner and counsel assisting should turn their minds to potential policy issues and recommendations

  • if recommendations are contemplated, a check should be made with the State Coroner’s Office and the National Coronial Information System for recommendations made in similar matters. This can be done through the State Coroner’s Office: see Making recommendations at [44-140]

  • subpoenas should be issued for witnesses required and for any further documents not already obtained under a s 53 notice to produce

  • interpreters should be ordered if required

  • any necessary or appropriate technology, AVL links, and video equipment should be organised

  • any applications for non-publication orders should be heard and determined: see Non-publication orders.

Working with counsel assisting

The coroner works closely with counsel assisting prior to, and during, the inquest.

No mention is made within the Coroners Act of the right of counsel assisting to appear, or the role and responsibility of counsel assisting. They are, nevertheless, an institution well-established in Australian coronial jurisdictions.

In NSW, the role of counsel assisting may be performed by a police prosecutor or a coronial advocate in more straightforward cases. In more complex inquests, the coroner may be assisted by a lawyer within the Crown Solicitor’s Office, who may consider engaging counsel.

The relationship between coroner and counsel assisting is unique. There is no bar to discussions with counsel assisting before, during or after the evidence. Similarly, the officer in charge of the case can be consulted by the coroner as to the issues of the case. On behalf of the coroner, counsel assisting and the instructing solicitor liaise with the police investigator with carriage of the matter, the persons of sufficient interest or their legal representatives, and the witnesses.

Unlike other judicial officers, a coroner is not a passive recipient of a case brought before the court. Coroners provide guidance to counsel assisting as to how they wish to conduct the inquest, and will ensure that counsel assisting keeps the inquest focused on the issues. Counsel assisting is the coroner’s adviser but, ultimately, the coroner must decide the issues to be examined, the witnesses to be called, the conclusions that will be drawn and any recommendations that will be made. Confidence, trust and mutual recognition of their respective roles is imperative for both coroner and counsel assisting.

Regional magistrates may feel uncomfortable working in this manner with a police advocate whom they ordinarily keep at arm’s length. If so, they may seek a police prosecutor from another circuit or district to assist them. Alternatively, they may apply to the State Coroner for the assistance of one of the coronial advocates based at Lidcombe Coroners Court.

Ordinarily, coroners should not have discussions with expert witnesses to be called on contentious issues, as this may lead to the perception that the coroner has prejudged the issue or has not afforded procedural fairness: Re Doogan; Ex p Lucas-Smith (2005) 158 ACTR 1 at [98] and [99]. This task should be left to counsel assisting.

The procedure at inquest

First Nations deaths: cultural considerations at the inquest

Where the death is of a First Nations person, there are cultural aspects to consider. At the beginning of the inquest or at the close of the evidence, the family may wish to incorporate ceremonies which are specific to the deceased person’s family or tribal community. These are encouraged, as consistent with the spirit of recommendations made within the Royal Commission into Aboriginal Deaths in Custody, and with the State Coroner’s Protocol regarding First Nations deaths.

It is also important to:

  • consult the family on how they wish the deceased person to be named throughout the proceedings

  • include in the opening address of counsel assisting, details of the tribal community which the deceased person identified with, and their community and kin connections

  • pre-warn the family if the inquest will involve visual or audio material of the deceased person.

ACISP officers at Lidcombe are available to provide advice to coroners on these issues, and to liaise with, and give support to, the family.

Inquests and the model litigant policy

Government agencies such as the NSW Police Force, NSW Department of Health and Corrective Services NSW frequently appear in inquests.

They are bound by the DCJ, Model Litigant Policy, June 2016, a statement of principles reflecting the existing law. The policy, while referring to civil litigation, applies generally to litigation conducted by NSW government agencies. It states:

3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards.

Coroners are entitled to expect that those acting for the Crown or government agencies will cooperate with and provide as much reasonable assistance to them as is consistent with their duty to represent their clients’ interests.

General inquest procedure

After appearances are taken at the beginning of the inquest, it is courteous for the coroner to welcome family members who are present and to express sympathy to them for the loss of their relative. See The family at the inquest.

Counsel assisting will make an opening address. This will outline the purpose of the inquest, provide background to the case, outline the issues to be investigated and the statutory questions to be answered, and highlight the key features of the anticipated evidence.

The officer in charge is usually called first. The brief of evidence is normally tendered through that officer. Sometimes they may be asked to provide an overview of the investigation, or to provide evidence on specific issues identified by the family or by parties of sufficient interest.

If a view is to be conducted, it is often useful for it to be conducted immediately after counsel assisting has opened or after the officer in charge has summarised the evidence gathered during the investigation.

Witnesses are then called and examined by counsel assisting. Note that the coroner determines the witnesses called to give evidence. Persons with sufficient interest may apply to the coroner to have a particular person examined (s 60(1)), but it is ultimately the coroner who determines which witnesses are called and the order in which they are called. Ordinarily, most of the evidence will be adduced by counsel assisting.

While counsel representing persons of sufficient interest have rights of cross-examination, these are limited to protecting the interests of their clients. They do not have unfettered rights to cross-examine at large or to address the coroner. Any documents sought to be relied on by persons with sufficient interest should be shown first to counsel assisting and, if appropriate, tendered through them.

Although the rules of evidence and procedure do not apply, procedural fairness is critical. Persons of sufficient interest are entitled to appear, to be legally represented, to be provided with the evidence and to seek to provide evidence in response, to examine witnesses in relation to their own interests, and to make submissions regarding any finding or comment which is adverse to their interests: Annetts v McCann (1990) 170 CLR 596; Musumeci v Attorney General of NSW (2003) 57 NSWLR 193.

Coroners may, if they consider it to be in the interests of justice, order witnesses to leave the courtroom until called: see s 74(1)(b).

At the conclusion of the evidence, it is common for a member or members of the deceased person’s family to address the court about their loved one: see The family at the inquest.

For other issues that can arise at the inquest, see:

Submissions

Following the family statement, the advocate or counsel assisting will address the court, suggesting findings that are available on the evidence and proposing recommendations if appropriate.

Persons of sufficient interest do not have a general right to address on the whole of the evidence but are entitled to put submissions relevant to the protection of their own interests: Annetts v McCann at 601. In practice, however, interested persons are usually given wider latitude.

Legal representatives or counsel assisting sometimes request that their submissions be provided in writing, rather than orally at the close of the evidence. This request should be considered on a case-by-case basis. Agreeing to written submissions will prolong the period before findings can be given, and is not usually appropriate where the evidence and issues are not complex. However, where they are, it may be appropriate to set a timetable for the filing of written submissions. In addition, where recommendations are proposed, persons of sufficient interest who will be impacted by the recommendation will often require a short adjournment to consider their position and provide written submissions as to the need or practical feasibility of the proposal: see Making recommendations at [44-140].

Findings

Section 81 requires that a coroner who holds an inquest or fire inquiry must record their findings in writing. For assistance with the format of findings, coroners may access findings in relation to previous inquests on the NSW Coroner’s Court website.

Depending on the complexity and quantity of the evidence, it may be possible for the coroner to deliver findings, noting they must be recorded in writing.

However, due to the length or complexity of the evidence in some cases, the coroner will need to reserve findings and prepare a written document containing these together with detailed reasons. In addition, if recommendations are being considered, they need to be drafted with care.

As is the case when a magistrate reserves judgment following a criminal and civil hearing, the date for findings should ordinarily be fixed within days and not months of the inquest or inquiry.

What standard of proof applies?

The standard of proof for findings is the civil standard. In relation to suicide, the Briginshaw civil standard applies: Briginshaw v Briginshaw (1938) 60 CLR 336.

Findings in respect of missing persons

It is not always clear that a missing person is dead, even if they have been missing for a lengthy period. An inquest will almost always be required, due to the absence of clarity that the person has died, and as to the cause and manner of their death. An inquest is also likely to be important for the missing person’s family and friends, who have been left without answers as to what happened to their loved one.

There is a presumption of law that a person is dead if, at the time of the inquest:

at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living: Axon v Axon (1937) 59 CLR 395 at 405 Dixon J.

Typically, police investigations concerning a missing person will include investigations concerning the deceased’s bank accounts, social security records, police records, passport checks (including immigration records), records of the NSW Roads and Maritime Services and the like. Evidence will also be taken from close friends and relatives of the missing person as to when they were last seen or heard from, and whether it would be out of character for them not to have made contact.

A finding that a person is dead is a serious matter warranting the application of the Briginshaw standard of proof: Briginshaw v Briginshaw, above; also see Waller at [81.29].

Having heard the evidence the coroner may be satisfied that a missing person has died. However it is unlikely there will be sufficient evidence to establish cause and manner of death: see Open findings.

Open findings

An “open finding” refers to the situation where a coroner is unable to make a finding due to insufficiency of evidence. Open findings will often be made where a person’s remains are decomposed. In such cases, the coroner will make findings on each of the statutory criteria for which they can be made, while those remaining are left open.

Open findings, in particular as to cause and manner of death, are also common in inquests in relation to missing persons.

Was the manner of death suicide?

Before a finding of suicide can be made, a coroner should be “comfortably satisfied” on the balance of probabilities to the Briginshaw standard that this is the appropriate finding: see Waller at [81.29].

In cases where a person has died as a result of drug toxicity, it may not be clear that the person ingested the drugs with the intention of taking their own life. This may also be the case where the death is the result of a fall from a height, particularly if the person was affected by drugs or alcohol.

When making a finding as to the manner of death in such matters, a coroner should state whether the evidence is sufficient to find that a person intended to end their life, or did not intend to end their life, or the coroner is unable to determine this issue.

Section 75(1) and (4) enable a coroner to make a non-publication order before, during or after findings, in respect of information concerning a death that appears to have been self-inflicted.

Once a finding has been made that the death was self-inflicted, s 75(5) prohibits the publication of a report of the proceedings (or any part of them) unless the coroner specifically permits the publication by order. The coroner may only make such an order if it is desirable in the public interest to do so: s 75(6); also see Non-publication orders.

The family at the inquest

Inquests are usually painful experiences for family members. Few would choose to relive the distressing experience of their relative’s death, were it not for the sake of finding answers to their questions and seeking changes which might prevent future such deaths.

Coroners need to be sensitive to the feelings of the family, and to do what is possible to reduce the distressing impacts of the inquest.

In appropriate cases, CISP or ACISP members should be contacted to request support for family members during the inquest.

Coroners should take care to know the names of family members who are attending the inquest, and their relationship to the deceased person. They should ask the family by what name they would prefer their relative to be called throughout the inquest. They should also pre-warn the family of forthcoming evidence which describes the immediate events of the person’s death, or will include medical evidence which may be confronting to hear.

When the family is not represented at the inquest, counsel assisting should consult with family members, and examine issues raised by them which are materially relevant to the inquest.

Family statements

Prior to the inquest, the family should be made aware that they will have the opportunity to honour the memory of their loved one by telling the court about them. This address will usually occur at the close of the evidence, but before closing submissions are commenced.

Although they do not have the status of evidence, “family statements”, as these addresses are known, are a very valuable part of the inquest. For the coroner they are an insight into the life of the deceased person, and what they meant to those who loved them. For the family this is an opportunity to honour their relative as the human being they were, rather than just being the subject of evidence about clinical procedures or police attention.

Although it is right to allow latitude to the content of the family statement, it should not be the occasion for the family to make critical or insulting comments about medical staff, police or other family members. For this reason, in advance of the statement being given counsel assisting will generally request from the family a written draft of what they intend to say, to ensure that these boundaries are respected.

It is also appropriate to be very flexible about the manner in which the family statement is given. Usually it is spoken by a family member or members, but sometimes the family prefers that their words are read to the court by their legal representative, or by counsel assisting. The family statement is sometimes accompanied by music, or with a video which the family has specially prepared. Items that were special to the deceased person are sometimes placed in the court or shown to the coroner, such as poems, photographs or artworks.

In the case of First Nations people, there may be an accompanying ritual or ceremony.

The family statement is an emotional experience for all, and particularly for the family. Once it has been given, it is usual for the coroner to take a short adjournment before returning to hear closing submissions.

Legal aid may be available for unrepresented persons for a coronial inquest. The letter notifying the family about the forthcoming inquest should advise them to make this enquiry with Legal Aid NSW.

Non-publication orders

Coroners have a power to prohibit publication of evidence received in inquests and inquiries, where it is in the public interest to do so: s 74(1)(b).

In addition to the coroner’s express powers to make non-publication orders, Hamill J in Commissioner of Police v Deputy State Coroner [2021] NSWSC 398 at [78] accepted that a coroner has an implied or incidental power to make non-publication, non-disclosure or suppression orders over material adduced in evidence, evidence gathered in the course of a coronial investigation and material held on the court file.

The Act’s definition of “published” in s 73 is wide enough to include internet publications, as well as publication in blogs and other websites where content is made available to the general public.

Although the term “public interest” is not defined in the Act, the coroner may have regard to the factors listed in s 74(2) which include the principle that coronial proceedings should generally be open to the public.

It is well established that although the principle of open justice is of great importance, it is not absolute: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; R v Kwok (2005) 64 NSWLR 335. Nevertheless, orders for non-publication should only be made where publication would frustrate the administration of justice: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1.

Prior to the service of the coronial brief, parties with sufficient interest such as the Commissioner of NSW Police and the Commissioner of Corrective Services NSW might seek orders for non-publication of specific material, pursuant to s 74(1)(b). These applications often relate to specified content of policies and procedures. The application is usually brought on the grounds that publication would not be in the public interest because it would jeopardise police methodology, or compromise security and good order within prisons.

Evidence brought in support of such applications should be specific as to the material which is said to require non-publication, and addresses the specific harm purported to flow to the public interest if the order is not made. A non-publication order can be restricted to parts and not necessarily the whole of a document.

The terms of a non-publication order must be clear and recorded on the court file.

In NSW, non-publication orders must also be considered by coroners in cases of suicide: s 75. Reporters present in court should be warned that it is an offence to publish a report of the proceedings without an order from the coroner permitting them to do so: s 75(5) and (7).

Disclosure and admission of confidential material

This issue may arise when a party with sufficient interest makes a claim for public interest immunity, or when considering whether to disclose all of the evidence in a coronial brief to a person of interest. In such cases, it is recommended the Duty Coroner be consulted.

Also see HT v The Queen (2019) 269 CLR 403 and Commissioner of Police v Attorney General (NSW [2022] NSWSC 595.

The privilege against self-incrimination

A witness is not permitted, without lawful excuse, to refuse to be examined in an inquest, if required by the coroner to give evidence: s 62. A “lawful excuse” is a valid excuse supported by law: Signorotto v Nicolson [1982] VR 413; or a reason or excuse recognised by law as a sufficient justification: McGuiness v Attorney-General (Vic) (1940) 63 CLR 73 per Dixon J at 105. However, witnesses are entitled to object to answering questions if a truthful answer may tend to incriminate them or make them liable to a civil penalty: s 58(2).

Dicta in Maksimovich v Walsh (1985) 4 NSWLR 318 at 328 indicates that it would be proper for a judicial officer to advise a witness of this privilege if the witness is unrepresented. This may also be the case where a witness’s representative has overlooked the privilege.

If a witness objects to answering a question, the coroner must determine if there are reasonable grounds for the objection: s 61(2). That is, is there is a “real and appreciable risk” of criminal proceedings being taken against the witness: Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 422. Whether the risk is real or appreciable will usually be apparent to coroners from the coronial brief.

If the coroner decides that there are reasonable grounds for the objection, they must inform the witness in accordance with s 61(3), which includes in s 61(3)(b) that the coroner will give a certificate to the witness if they give evidence willingly or if required to do so under s 61(4).

The effect of a s 61 certificate

If a certificate is given, the effect is that the evidence given by the witness cannot be used against the person in any proceedings in NSW except for criminal proceedings in respect of perjury. The protection extends to derivative use, that is, to any information, document or thing obtained as a direct or indirect consequence of the person having given the evidence at the inquest: s 61(7). The protection does not however extend to Australian jurisdictions other than NSW, or to prosecutions in a foreign country.

The derivative use immunity provided by a certificate means that the coroner needs to consider carefully whether to grant one. If given, the effect is likely to significantly compromise any future criminal investigation and prosecution of that witness. This problem is most acute where the witness is suspected of committing a criminal offence which may have caused the death. For this reason, in such cases it is usual for the coroner not to require such a witness to give evidence at the inquest.

In many cases however there may be minimal or no prospect of later criminal proceedings, and significant value to the inquest and to the family in hearing the witness’s evidence. These features would operate strongly in favour of granting a certificate.

Compelling the witness’s evidence

If a witness declines to give their evidence with the benefit of a certificate, a coroner is empowered to compel the witness to do so, if satisfied that the interests of justice require this course: s 61(4)(b).

“The interests of justice” is not defined in the Coroners Act. The criteria proposed within Odgers’s Uniform Evidence Law in relation to certificates under s 128 of the Evidence Act 1995 may be adapted and used as a guide in coronial proceedings.

Global objections

A global objection is an objection to giving any evidence, on the grounds that any answer the witness might give may be a link in the chain which would ultimately lead to self-incrimination.

In Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 423, Kirby P commented:

The proper procedure in a claim for privilege is to object to each question as it is asked …

However, to adopt this course will often result in an inefficient and unwieldly process. A better approach may be to consider whether particular lines of questioning will have the tendency to incriminate the witness. If so, objection may be taken on an identified “topic by topic” basis, rather than on an individual or a global basis.

[44-120] Suspending an inquest or inquiry

When must a coroner suspend a coronial investigation?

If, before or during an inquest or inquiry, a person is charged with an indictable offence which raises the issue of whether they caused the death or fire in question, the coroner must suspend the coronial investigation or inquiry, pending the completion of the criminal proceedings: s 78(1)(b), (2)(b).

When must a coroner suspend an inquest or inquiry after it has commenced?

While coroners must inquire into suspicious deaths, they are not permitted to make any finding, comment or recommendation suggesting a person has committed any offence: ss 81(3) and 82(3). It is not a coroner’s function to determine questions of criminal or civil liability. The coroner’s task is to find the facts surrounding the cause and manner of a person’s death, not to draw legal conclusions from those facts.

Furthermore, coroners are not bound by rules of evidence or procedure and their findings, if expressed in condemnatory terms, may cause harm to a person’s reputation, or prejudice a future trial.

For these reasons, and pursuant to s 78(1)(b), if a coroner finds that the evidence given up to a certain point in an inquest or inquiry:

  • is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, and

  • there is a reasonable prospect that a jury would convict the known person of the indictable offence, and

  • the indictable offence would raise the issue of whether the known person caused the death or fire which is the subject of the inquest,

the coroner is required to suspend the inquest or inquiry: s 78(3)(b).

In assessing the prospects of conviction, the coroner must only take into account evidence that would be admissible in criminal proceedings. In addition, the “known person” must be a living individual.

In practice it is suggested that counsel assisting, without urging that s 78 be applied, proceed to outline the evidence that may support that conclusion.

Before suspending an inquest under s 78, a coroner must give the person of interest an opportunity to make submissions against this course of action: Maksimovich v Walsh at 328 per Kirby P. President Kirby suggested that it would be appropriate for the coroner to be open with the person of interest so that they have a chance to address the issue properly.

To protect the person of interest from prejudicial publicity, s 76 prohibits the publication of certain matters, including s 78 submissions, without the coroner’s express permission.

It is suggested that, having given a person of interest an opportunity to be heard on the question of s 78, a coroner should not give reasons for rejecting them: to do so would go against the policy underpinning s 78. Rather, if that is their intention, the coroner should simply state that they have heard the submissions but intends to suspend the inquest or inquiry.

Before suspending the inquest, the coroner may make findings that a person died on a certain date, in a certain place but must not name any person who may have been responsible for the death or make any statement about the circumstances or cause of death. This is also the case with fire inquiries: s 78(2).

After the matter is suspended

Pursuant to s 79, after the criminal proceedings are complete a coroner may:

  • resume an inquest or inquiry which has already begun

  • commence an inquest or inquiry, or

  • dispense with the resumption or holding of an inquest or inquiry.

It may be appropriate to commence an inquest following criminal proceedings, where there are wider aspects of the manner of death to be considered, for example, the role of agencies in failing to prevent the death.

It has been held that the double jeopardy rule is not breached if a coroner holds an inquest after a person has been acquitted of an alleged homicide: Domaszewicz v The State Coroner (2004) 11 VR 237.

The referral to the Office of the Director of Public Prosecutions

After suspending an inquest or inquiry, the coroner is to refer the matter to the Office of the Director of Public Prosecutions (ODPP) in accordance with the protocol between the Coroner’s Court and the ODPP dated 16 February 2023. In accordance with the protocol, within two months of suspending the inquest or inquiry, the coroner is to make their best efforts to ensure the ODPP is provided with the relevant material, including:

  • the depositions taken at the inquest or inquiry (s 78(4)(a))

  • in an inquest or inquiry referred to in s 78(1)(b), a written statement signed by the coroner, specifying the name of the known person and particulars of the indictable offence/s concerned (s 78(4)(b)), and

  • a copy of the brief of evidence.

It is a practice of the Coroner’s Court to also include an analysis of the legally admissible evidence in short form, and a list of any obvious requisitions for further evidence.

The protocol provides that the ODPP will make a determination within six months following receipt of the referral from the Coroner’s Court, subject to any requisitions for further material raised by the ODPP.

[44-140] Making recommendations

One of the objects of the Coroners Act is to enable coroners to make recommendations that will improve public health or safety and help prevent future deaths of a similar kind: s 3(e). Section 82(1) provides a coroner with power to make recommendations considered necessary or desirable in relation to any matter connected with the death or fire. Recommendations can be, without limitation, directed to public health and safety matters, or that a matter be investigated or reviewed by a specific person or body: s 82(2).

During the inquest a coroner may foreshadow to persons with sufficient interest that recommendations are under consideration. In doing so, the coroner is not to pre-judge what their factual findings will be. This may enable additional relevant evidence to be adduced at the inquest in respect of whether it is necessary or feasible to make those recommendations.

At the close of evidence, submissions regarding the proposed recommendations should be invited from any persons with sufficient interest, particularly those who will be affected by them. This is required in the interests of procedural fairness. Such submissions should assist the coroner with information including as to whether the proposed recommendations are useful, practical, and can feasibly be implemented. The affected parties may also be able to suggest a more effective way of achieving a proposed recommendation’s purpose.

A pragmatic and informed approach to the making of recommendations is important. If recommendations are impracticable or vague they are not likely to be implemented, and unlikely to be effective if they are. Further, a coroner’s credibility is likely to be diminished by extravagant, vague or impractical recommendations.

Accordingly, the most effective recommendations are specific, concrete and supported by the evidence.

An exception to this general rule is where the inquest exposes a systemic problem, and the coroner is not in possession of sufficient information to frame specific recommendations. In these cases it may be appropriate to recommend that the specific issue be reviewed by the appropriate body with a view to finding ways to address it.

If recommendations concerning government agencies are made, the coroner should make these to the responsible Minister. Other recommendations should be made to the person or body in question directly.

Recommendations are recorded on the National Coroners Information System (NCIS): see www.ncis.org.au.

Recommendations must be made at the time that findings are made. Once a coroner is functus, they cannot reopen the case to make further recommendations: X v Deputy State Coroner for NSW (2001) 51 NSWLR 312.

When similar recommendations have previously been made

Many of the problems coroners confront have previously been the subject of inquests in NSW and other States. Inconsistency between recommendations, especially recommendations that contradict one another, reduces the credibility of coroners and frustrates agencies who are asked to implement them.

Before recommendations are made final, a check should be made with the State Coroner’s Office and the NCIS to ascertain if the proposed recommendations have previously been made, and to ensure that potential inconsistency between recommendations is avoided.

If similar recommendations have previously been made, this of itself does not mean they ought not to be repeated in a subsequent inquest. This is particularly the case with enduring and significant issues of public health and safety, where the case for change is strong and little or no progress has been made with implementing the previous recommendations.

The National Coronial Information System (NCIS)

NCIS is intended to work as a national database, systematically collecting coronial data to enable the wide dissemination of coronial experience and information. Coroners may apply to NCIS for access to its databases through the State Coroner’s Office or request aggregate data reports to assist with coronial investigations. Reports can include data from open and closed cases, identifying information, summaries and recommendations: see www.ncis.org.au.

Information on the database includes:

  • particulars of deceased persons: name, date of birth, occupation, age, gender, place of residence, etc

  • if a work-related incident

    (i) 

    occupation at the time of incident

    (ii) 

    industry at the time of incident

  • indigenous identification

  • time/location of incident

  • activity at time of incident

  • intent, both suspected at time death reported and final

  • mechanism of injury: primary, secondary and tertiary

  • object or substance involved: primary, secondary and tertiary

  • medical cause of death

  • where the death is related to a motor vehicle accident

    (i) 

    vehicle type

    (ii) 

    driver/passenger

    (iii) 

    context

    (iv) 

    user.

Full text reports include:

  • police narrative of circumstances

  • autopsy report

  • toxicology report

  • findings.

NCIS does not contain:

  • transcripts of inquests

  • photographic evidence

  • witness statements.

What happens after recommendations are made?

Coroners have no statutory power to demand a response to recommendations. They are entitled to request one: State Coroner’s Circular No 72. If a recommendation is made to a non-government organisation or a private individual, coroners should specify a reasonable time by which a response is requested.

The Premier’s Memorandum 2009-12 sets out the process for Ministers and NSW public officials to respond to coronial recommendations.

It requires that, on receipt of a recommendation, the Minister or official acknowledge it within 21 days.

If the Minister or official considers that the recommendation falls within the responsibility of another Minister or agency, they are required to forward the recommendation to that Minister or agency and to notify the State Coroner and Attorney General of the referral. The recipient is then required to acknowledge receipt of the recommendation.

Within six months of receiving a coronial recommendation, a Minister or NSW government agency should write to the Attorney General outlining any action being taken to implement the recommendation. Reasons should be given if a recommendation is not to be implemented and may include that the recommendation will not achieve the intended outcome; the outcome can be achieved in another way; or the recommendation is impractical having regard to the cost and potential benefits.

Ministers and agencies are encouraged to provide updates to the Attorney General on any further action taken to implement recommendations following their initial advice.

Incomplete inquests

If due to illness, retirement or other reason, a coroner is unavailable to conduct or complete an inquest, the State Coroner may direct another coroner to hold the inquest: s 33(2). Before doing so, the State Coroner must consult the Chief Magistrate: s 33(3).

If an inquest has already been commenced, the depositions taken may be admitted in evidence in the fresh inquest: s 64.

[44-160] Supreme Court applications

Apart from rare applications to the Supreme Court from next of kin objecting to autopsies, applications are sometimes made by persons involved in inquests and enquiries on points of law.

The Supreme Court may, on the application of the Minister or any other person, make an order that an inquest or inquiry that has been (or that has purportedly been) held be quashed and that a new inquest or inquiry be held if the court is satisfied that it is necessary or desirable to do so in the interests of justice because of fraud, the rejection of evidence, an irregularity of proceedings, an insufficiency of inquiry, the discovery of new evidence or facts, or any other reason: s 85.

In Supreme Court applications, the coroner is usually represented by the Crown Solicitor. The DCJ generally liaises with the Crown Solicitor’s Office regarding representation of magistrates. Magistrates should direct enquiries to the DCJ.

Upon receiving a Supreme Court summons or other originating process, a coroner should also immediately get in touch with the State Coroner’s Office to notify of the action and the nature of the issue being litigated.

[44-180] Fire inquiries

One of the objects of the Coroners Act is to enable coroners to investigate fires and explosions that destroy or damage property within NSW, in order to determine the causes and origins of (and in some cases, the general circumstances concerning) such fires and explosions: s 3(d).

Section 30 provides for two types of inquiry in relation to a fire or explosion that has destroyed or damaged property within NSW:

  • an inquiry to investigate the cause and origin of a fire or explosion, and

  • in limited circumstances, a general inquiry, which extends to an examination of all of the circumstances surrounding a fire or explosion, including but not limited to its cause and origin: ss 30–32.

The State Coroner has directed that a fire or explosion need only be reported to the coroner when:

  • a person dies or is seriously injured as a result of the fire or explosion

  • the fire or explosion has a significant impact on the local community, or relates to a systemic health or safety issue of public interest, or

  • the Attorney General, NSW Police Commissioner or delegate, Commissioner of Fire and Rescue NSW, Commissioner of NSW Rural Fire Service, or the NSW State Coroner requests the report of the fire or explosion: see State Coroner’s Bulletin No 22 of October 2022.

What is meant by “cause and origin” of a fire?

In R v Doogan; Ex p Lucas-Smith (2005) 158 ACTR 1, it was held that the phrase “cause and origin” are separate concepts. The Supreme Court of the Australian Capital Territory (Full Court) said at [23]:

The word “origin” means, of course, the source or beginning, and in the context of a fire it clearly refers to the starting point.

In relation to causation, the “commonsense” test in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 was adopted by R v Doogan; Ex p Lucas-Smith at [29]:

The application of that test will obviously depend on the circumstances of the case and, in the context of a coronial inquiry, it may be influenced by the limited scope of the inquiry which … does not extend to the resolution of collateral issues relating to compensation or the attribution of blame.

Mandatory inquiries

An inquiry is required to be held in the following circumstances:

  • if directed by the State Coroner, or

  • if requested by an “authorised public official” (namely, the Commissioner of the NSW Fire Brigades, the Commissioner NSW Rural Fire Service, or the Minister): s 32(1), (2).

A general inquiry may only be held following a direction by the State Coroner: ss 30(2), 32(3). Such a direction must be made if an authorised public official so requests, or otherwise if the State Coroner is of the opinion a general inquiry should be held: s 32(4).

The decision whether to dispense with a fire inquiry

Coroners may dispense with the holding of an inquiry, where the circumstances are other than those set out in s 32. The coroner must be satisfied either that the cause and origin of the fire are sufficiently disclosed or that an inquiry is unnecessary: s 31(1).

In many cases reported to the coroner, an inquiry is dispensed with on the basis that there is no public interest in conducting one. This is usually because the fire is minor, the coroner is satisfied on the basis of the police investigation that an inquiry is unlikely to produce any additional evidence, or a coroner is unlikely to make any useful recommendations arising out of an inquiry.

Before dispensing with a fire inquiry, it is appropriate to enquire whether one is sought by the property owner, insurer, or fire authorities.

There may be a case for conducting a fire inquiry in the following circumstances:

  • there are public health or safety issues which have not been rectified

  • an inquiry is likely to produce more evidence than has been obtained by fire investigators

  • complaints have been made about fire-fighting services warranting further independent inquiry

  • useful recommendations relating to the public interest may be made, or

  • a fire was a large-scale event resulting in substantial property damage, and/or significant public interest or concern (for example, the 2019–2020 bush fire season).

An inquiry will not be held in all cases where it appears that a fire has been deliberately lit in suspicious circumstances. There may be little to be gained from an inquiry if, after a thorough police investigation, there is insufficient evidence to charge persons of interest.

Death of a person in a fire

Where a person dies in a fire, a coroner will often hold an inquest into the person’s death simultaneously with holding an inquiry into the cause and origin of the fire.

In such cases, while there will be one set of hearings in both matters, two coronial files should be created, one for the inquiry and one for the inquest. There will also be two separate sets of findings pursuant to s 81.

[44-200] State Coroner’s Bulletins and Resources

Last reviewed: Jul 2023

State Coroner’s Bulletins are issued on coronial matters on a regular basis. Coroners should keep abreast of developments as they are issued: see https://intranet.internal.justice.nsw.gov.au/Divisions/Pages/divisions/coroners-court/Coroners-court.aspx.

The Coroner’s Court NSW website is a good starting point at www.coroners.justice.nsw.gov.au.

Additional information can be obtained from:

  • Australian Coronial Law Library on JIRS/Other Resources at https://jirs.judcom.nsw.gov.au/menus/other_resources.php

  • J Abernethy et al, Waller’s Coronial Law and Practice in NSW, 4th edn, LexisNexis, Sydney, 2010

  • H Dillon and M Hadley, The Australasian Coroner’s Manual, The Federation Press, Sydney, 2015

  • I Freckleton and D Ranson, Death Investigation and the Coroner’s Inquest, Oxford University Press, South Melbourne, 2006 is a comprehensive general introduction to coronial law but has limited practical application

For commentary on the Coroners Act 2009, see Criminal Practice and Procedure NSW, LexisNexis Butterworths, Vol 4, Sydney, 1998 at [25-s 1]ff.

For information on death-related grief, depression and suicide prevention for the community and professionals, see: