Coronial matters

Note:

All references to sections in this chapter are, unless otherwise stated, references to sections of the Coroners Act 2009.

[50-000] Introduction — what is the role of a coroner?

The traditional role of a coroner is to investigate and make findings about sudden, violent, suspicious or unnatural deaths: ss 3 and 17. In NSW, coroners also have jurisdiction to investigate fires and explosions. The role of a coroner is both judicial and investigative. “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).

If warranted in the particular case, the making of appropriate recommendations following an inquest is also a critical function of a coroner.

All NSW magistrates are coroners by virtue of their status: s 16. In the metropolitan area, coronial matters are almost invariably handled by the State Coroner and Deputy State Coroners in the Coroners Court. In Newcastle and Wollongong, a magistrate is appointed by the Chief Magistrate as part-time coroner.

In other country areas coronial jurisdiction is ordinarily exercised locally by the magistrate.

The exception to this general rule is set out in the Chief Magistrate’s Protocol 5, February 2001 which requires that inquests likely to run for longer than five days must be referred to the State Coroner and will be conducted by him or her or one of the Deputy State Coroners.

Note:

The State Coroner and Deputy State Coroners have exclusive jurisdiction in relation to certain matters: see Reportable deaths at [50-020].

[50-020] Death investigation and the coroner

Reportable deaths

What deaths are reportable to coroners?

Sections 6 and 35 deal with deaths that are reportable to a coroner. Section 6 defines a reportable death. Section 35 requires that persons who have reasonable grounds to believe that a reportable death has taken place must make a report.

Reportable deaths are:

  • 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 of persons who have not been treated by a medical practitioner within six months of their deaths: s 6(1)(d)

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

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

A doctor may not issue a death certificate in respect of a reportable death: s 38. Any death certificate issued in respect of a reportable death is invalid.

What is a health-related procedure under the Coroners Act?

The definition of health-related procedure is very wide. Section 6(3) states that a health-related procedure may be a medical, surgical, dental or other health-related procedure. This includes the administration of anaesthetics, sedatives and other drugs.

What health-related procedure deaths are reportable?

The application of the definition of reportable death following a health-related procedures can be problematic. It requires consideration of two related but separate questions:

1. 

Did the procedure cause or contribute to the death or would it have occurred anyway as a result of the patient’s condition? For example, if a patient presents with acute abdominal pain and an exploratory laparotomy discovers inoperable necrotic bowel from which the patient dies days after the procedure, it is reasonable to conclude the death was not the outcome of the procedure but the condition and the death is therefore not reportable.

2. 

Was the death reasonably expected? That is, before the procedure was commenced, was it recognised that because of the patient’s condition it was more likely than not that the procedure would not preserve the patient’s life but his/her outlook was so bleak that despite being informed of that risk the patient (or their statutory substituted decision maker) and the treating team elected to continue with it. For example, in the case outlined above, because of the relatively young age of the patient and his/her otherwise good health it is decided to attempt to resection the bowel and anastomose the remaining intestine. The tissue is found to be very friable; six hours post-surgery, a leak is detected and the patient is taken back to theatre but sepsis has already set in and the patient dies the following night. It can be argued that the procedure has contributed to the death but that outcome was not unexpected. The death is not reportable.

When does a coroner have jurisdiction?

A coroner has jurisdiction in the following circumstances 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 that a medical practitioner has not issued a death certificate in respect of a death or suspected death: s 21(1)(b)

  • a coroner has reasonable grounds to suspect that a medical practitioner has not issued a death certificate concerning a death or suspected death: ss 20 and 21(1)(b).

The death in question must have occurred within the last 100 years: s 19.

Note:

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 the Coroners Act have exclusive jurisdiction in respect of deaths:

  • in custody: ss 22 and 23(a), (b), (d) and (e)

  • in the course of police operations: ss 22 and 23(c)

  • of children in care: ss 22 and 24(a)

  • of children who have been the subject of reports made to the Department of Community Services (DOCS) within 3 years of the death: ss 22 and 24(b)

  • of siblings of children reported to DOCS within years of the death: ss 22 and 24(c)

  • of children which might be due to abuse, neglect or which are otherwise suspicious: ss 22 and 24(d)

  • of persons living in residential care facilities for the disabled: ss 22 and 24(e)

  • of disabled persons receiving care in the community: ss 22 and 24(f).

What do reports to the coroner contain?

Ordinarily, reports of deaths come from police officers in a Form P79A “Report of death to the coroner”. This summarises the known details of the deceased person, the name of the next of kin, if known, the circumstances of the death or the discovery of the body. It may inform the coroner whether a medical practitioner has been treating the deceased person in recent times and whether it is likely or not that a death certificate will be issued by the doctor. It will also outline for the benefit of the coroner, the preliminary views of the police as to whether the circumstances of the death are suspicious.

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 a synopsis of the clinical notes and, critically, an opinion as to the cause of death. If the patient had received an anaesthetic a, Form B “Report of death associated with anaesthesia/sedation” should also be provided to the coroner.

Form As vary in quality and usefulness. In many instances, the opinion as to the cause of death is speculative at best. In some cases, the treating doctors are unable to provide a useful opinion. They should always be scrutinised closely by the pathologist assisting the coroner before a decision as to whether or not to order an autopsy is made.

What happens with suspected deaths of a missing person?

The suspected death of a missing person is usually reported in a Form P79B “Report of suspected death to the coroner” by police. That Form sets out the missing person’s particulars and the relevant information concerning his or her disappearance, the attempts made to locate him or her and the basis on which death is now suspected.

[50-060] Basic issues for coroners

What are the key questions for a coroner?

From the time a coroner assumes jurisdiction in a case, usually when a death is reported, his or her investigation is focussed on answering the following primary questions:

  • has a person died?

  • if so, can that person be identified?

  • when did he or she die?

  • where did the death take place?

  • what was the direct cause of death?

  • what was the manner of the person’s 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.

What is the difference between cause and manner of death?

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. K Waller, Coronial Law and Practice in NSW, 3rd edn, Butterworths, Sydney, 1994, p 67 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 fall accidentally?

For the most part, 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 will list the direct cause of death followed by antecedent causes, that is, morbid conditions giving rise to the direct cause with any underlying condition also contributing to the death stated last.

In Section 2, it will list other underlying conditions possibly contributing to the death.

[50-080] Autopsies and objections to them

Should an autopsy be ordered?

The first question a coroner will usually be concerned with is whether it is necessary or desirable to order a post mortem examination of a deceased person: s 89(1); see also s 88.

The Coroners Act requires that the dignity of the deceased person be respected when post mortem tests or examinations are conducted and that the least invasive procedures appropriate in the circumstances be used in conducting them: s 88(1) and (2).

In considering whether to order a post mortem examination, a coroner should take the following factors into account:

  • Whether or not the general circumstances are suspicious, if so, an autopsy should generally be ordered.

  • Whether a cause of death is reasonably obvious or not. For example, if a person jumps off a cliff or hangs him or herself, the cause of death will usually readily be discernible from an external examination of the body and a toxicology test. Caution must be exercised, however, because sometimes attempts are made to disguise homicides by faking accidents or hangings. On the other hand, in many cases a cause of death is not self-evident and cannot be ascertained without a post mortem examination.

  • Whether a family objects to the post mortem and the strength of, and reasons for, that objection.

  • Whether a family desires an autopsy to establish the cause of death.

  • Whether a person has died in hospital and the death raises possible care and treatment issues.

  • Whether the apparent cause of death suggests a congenital issue that may affect other family members. For example, some people die suddenly of undiagnosed congenital cardiac abnormalities. Early warning of the possibility of such disorders may enable other family members to receive treatment to prevent their sudden deaths.

  • Note that it is sometimes argued by the medical profession that it assists hospital clinicians to have a definite cause of death established by an autopsy. This can have a bearing on how patients are diagnosed and treated in future cases. As helpful as this information may be to clinicians, it is not of itself an appropriate reason for ordering an autopsy. If it is desirable to know more about the progress or process of the fatal disease, a consented family autopsy may be the more appropriate route.

Are elderly deceased in a special category?

In the Coroners Act 1980, a coroner could dispense with a post mortem examination of a person 65 years old or more at the time of death, if the:

  • coroner is satisfied that he or she died of natural causes, whether or not that cause can be specified, and

  • senior next of kin indicates to the coroner that the deceased’s family do not wish a post mortem examination to be conducted to determine the precise cause of death: s 96.

While intended to have a beneficial effect, the Coroners Act 2009 recognises this approach to be discriminatory against aged people. No age limit is imposed in s 25(2). The elderly are often vulnerable, particularly to those caring for them who may have an ulterior motive for seeking to avoid an inquest or a post mortem examination. Coroners should not presume that the deaths of elderly people are by natural causes on the say so of relatives or carers alone.

This provision provides some guidance as to how a coroner will satisfy himself or herself that the death occurred due to natural causes. The question is to be answered by the application of common sense, the advice of the pathologist and, particularly, by reliance on police opinions as to whether the circumstances appear suspicious or not.

Coroners may, for example, when a deceased person has been under the care of doctors, request the forensic pathologist to review the medical records to confirm the death was not unexpected and is probably due to natural causes.

What powers does a coroner have concerning a post mortem examination?

Coroners have wide powers with respect to the directions they may give for post mortem investigations. Orders must be in writing.

Post mortem examination is not defined in the Coroners Act. Ordinarily, a post mortem examination is an autopsy or complete examination of a body. It involves opening the three cavities of the body: head, thorax and abdomen, for examination. The term includes, however, any less intrusive examination such as an external examination with a toxicology test.

Section 89 sets out the post mortem investigation directions that a coroner may make to a medical practitioner conducting the post mortem examination:

  • an order that he or she conduct, or arrange for another person to conduct, a full autopsy of a body: s 89(1)(a)

  • an order that he or she conduct, or arrange for another person to conduct, a special examination or test of a body: s 89(1)(b)(i)

  • an order that he or she conduct, or arrange for another person to conduct, an examination or test of the contents of a body or some part of a body: s 89(1)(b)(ii)

  • an order that he or she conduct, or arrange for another person to conduct, an examination or test of matters or things that the coroner considers should be tested, such as any tissue taken from a person before his or her death: s 89(1)(b)(iii)

  • an order that the medical investigator review the deceased person’s medical records: s 89(1)(c)

  • if the original post mortem examination does not satisfactorily explain the cause of death, an order for further autopsies, tests or reviews to be conducted: s 89(1)(d)

  • an order that a medical investigator conduct, or arrange for another person to conduct, an examination of a baby’s body to determine whether the child was stillborn: s 89(2).

A post mortem investigation direction can specify limitations on the investigations that the medical investigator may conduct: s 89(4). This is an important reform of the coronial legislation. Medical investigators sometimes argue that, for more abundant caution and to achieve greater precision in determining a cause of death, tests or examinations of body parts are necessary. Coroners, however, are not bound to accept this advice but should satisfy themselves that the examination ordered is the least intrusive method of determining the cause of death.

A particularly sensitive subject is the question of brain retention. Before a brain can be examined forensically, it must be set in formaldehyde. Ideally the brain is allowed to set for about 14 days before it is examined. For many families, the idea of burying their loved one without a brain is repugnant. In some cultures, such as the Jewish, Muslim and Buddhist faiths, there is a religious or cultural rubric that a dead person must be buried whole within a few days of his or her death. Naturally, every reasonable effort should be made to mitigate the bereaved family’s distress, if necessary by reducing the time allowed for brain retention.

In such circumstances, coroners must balance a number of competing considerations, the:

  • sensitivities of the bereaved family

  • responsibility of the coroner to establish, if possible, the true cause of death on the balance of probabilities

  • degree of the potential difficulties, if any, in establishing the cause of death if a full autopsy, including brain retention for a limited period at least, is not ordered by the coroner.

What limitations are there on a coroner’s powers to order post mortem investigation?

The Coroners Act requires that the dignity of a deceased person’s body be respected (s 88(1)) and that the least invasive procedures appropriate to determine cause and manner of death are to be applied: s 88(2).

These issues must be at the forefront of a coroner’s considerations. His or her orders should reflect these principles. Coroners may sometimes have to require a pathologist to justify an argument that a more intrusive procedure is required to establish cause of death.

The second major limitation is the right of next of kin to object to an autopsy: see Who may object to a post mortem examination? at [50-080].

Who may object to a post mortem examination?

Senior next of kin, defined in s 4, usually the spouse or eldest child of the deceased, have a right to object in writing to a post mortem and this right is quite frequently exercised: s 96. The senior next of kin may authorise another person, in writing, to exercise his or her rights and functions: s 98.

Other relatives may also object: s 99.

Note that a coroner must be satisfied as to who is the senior next of kin for the purposes of objection to a post mortem examination. The grounds of the objection are usually religious or cultural.

How may a coroner respond to an objection?

In Morris v Hand (unrep, 27/2/97, NSWSC) Dowd J succinctly expressed the tension between competing interests a coroner must take into account when an objection is made:

The religious matters and sensibilities which would have been brought to the attention of the Coroner are matters which are taken into account, but do not of themselves displace the duty of the Coroner to ensure that the manner and cause of death be established.

In some cases, the objection may be reasonably easy to deal with. For example, the cause of death may be self-evident — such as multiple injuries sustained in a fall from a bridge — obviating the need for a full autopsy. In such cases, families will usually consent to an order for an external examination and a toxicology report.

In other cases, however, the situation is more complex.

The State Coroner has provided coroners with a suggested protocol for dealing with objections: State Coroner’s Circulars Nos 30 and 36: State Coroner’s Circulars can usually find them in the Registrar’s chambers in their respective courthouses. The Coronial Information and Support Program team (CISP) at the NSW Coroners Court, Sydney advise coroners on how to deal with objections.

The State Coroner’s Circular Nos 30 and 36 recommend that, before making the decision, the coroner obtain a written opinion from the medical practitioner who has been ordered to carry out the examination explaining why a post mortem examination is necessary. Once that report is produced, the coroner should review his or her decision to order the post mortem examination. If the matter goes to the Supreme Court, that report may tendered in the application as the justification for a coroner’s order that a post mortem examination be conducted.

Coroners can and should obtain medical advice as to the necessity for a post mortem examination and the necessity for retention of large organs. Certainly in medical cases, it is not unusual to require the pathologist to review the medical file in order to assist the coroner to decide whether or not a post mortem examination is necessary.

Where a course of treatment is well charted, the cause of death is clear from the medical file and there is clearly no issue as to the quality of care and treatment, not only can a post mortem examination be avoided but an inquest can be promptly dispensed with. It should be remembered that examination of the brain is usually an integral part of a post mortem examination and the cause of death may not be clear from the medical file.

Where objections are raised by families, but a coroner considers that a post-mortem examination is or may be required, the staff of CISP should be involved to negotiate with the family on behalf of the coroner.

In some cases, they may be able to negotiate a compromise that satisfies both the coroner’s need to establish the cause of death and the family’s desire to maintain their loved one’s bodily integrity. For example, it may be possible that an external physical examination, a review of the medical records and a toxicology report will yield the desired result. If so, one or more of such procedures could be ordered by the coroner.

On the other hand, a compromise may not be possible. In this case, a coroner may order that a post mortem investigation be carried out notwithstanding the objection: s 96(3).

On doing so, he or she must immediately give written notice of that decision to the senior next of kin: s 96(3).

What information must the notice to the senior next of kin disclose?

In the written notice under s 96(3), the coroner must notify the senior next of kin of three factors, the:

  • decision that the post mortem investigation, or organ retention, is necessary or desirable

  • earliest time that the post mortem investigation will take place, being not less than 48 hours after the notice has been served, and

  • senior next of kin has a right to apply to the Supreme Court for an order that the post mortem examination not take place.

If a coroner determines that an autopsy must be conducted and the objection is maintained, a notice must be issued by him or her to the next of kin who then has 48 hours to apply to the Supreme Court for an order preventing the autopsy being carried out. The making of such an application stays the coroner’s order for an autopsy to be conducted: s 97(1) and (2).

How do coroners interpret post mortem reports?

A medical dictionary and access to Google is a useful way to learn the vocabulary of post mortem reports.

If in any doubt, call the pathologist who wrote the report. They are always ready to explain post mortem reports in plain English and to assist the coroner to arrive at appropriate conclusions. Before any inquest in which medical evidence is in issue, it is essential that counsel assisting or the police advocate speaks to the pathologist about their reports to ensure that they are well understood.

[50-100] Police investigations for the coroner

When should a coroner order a police investigation?

Coroners have power under the Coroners Act to order a police investigation of a death: s 51. Whether to do so is the second main question a coroner will have to consider when a death is reported.

In some cases, where the circumstances of the death are clear and are not suspicious, and it appears that the death is probably natural, a coroner may decide not to order a brief unless post mortem examination of the deceased raises suspicions.

Where there is some mystery about the circumstances of death but there appear to be no suspicious circumstances, an officer in charge only brief might be ordered. In such a case, the investigating police officer will gather the relevant evidence and summarise it in a comprehensive statement. A coroner can make a direction for further investigation if necessary after examining that brief.

In other cases, however, especially for mandatory inquests or where the circumstances are suspicious, significant issues of public health or safety appear to be involved or an inquest is mandatory, a full investigation should be ordered. Examples of such cases include, deaths in police operations, deaths in custody, deaths in which significant medical issues arise, especially where care or treatment of a deceased person is in issue.

It is frequently useful to provide specific directions as to the inquiries to be carried out. For example, a coroner may request that a statement from a treating medical practitioner in relation to an apparent suicide or a statement from a wife confirming the handwriting on a note is of the deceased, be taken.

Can a coroner issue a search warrant?

Coroners do not issue search warrants. They have power under Ch 5 to issue coronial investigation scene orders: see 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.

When may a coronial investigation scene order be made?

When may a coronial investigation scene order be made? The threshold for a coronial investigation scene order is low. A coroner may issue an order if he or she considers that a coronial investigation should be conducted in a certain place. By implication, however, a rational basis for that view would be required.

Usually an order is issued by a coroner at the request of police who require an order to enter a property and seize evidence, such as body parts or bones, for the purposes of investigating a death or suspected death.

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

An order empowers the police investigator to establish a coronial investigation scene, which the police always call a crime scene whether or not a crime has been committed or is suspected.

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 2002. 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.

[50-120] Gathering further information

How can a coroner obtain records during the investigation phase?

A coroner does not have power to issue a subpoena before an inquest is ordered. He or she has 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 may also be used to obtain, for example, human tissue taken from the deceased person before or after the death: s 53(2)(b).

The power is subject to claims of privilege including the privilege against self-incrimination: s 53(3) and (4).

The privilege against self-incrimination, however, cannot be claimed in respect of medical records: s 53(4).

How does a coroner obtain an independent expert’s report?

In many instances, especially in medical or other highly technical cases, such as aviation crash deaths, it is highly desirable to obtain an independent expert’s report to assess the records and other evidence.

An agreement has been reached between the Office of the State Coroner and the NSW Police Force that the cost of obtaining an expert’s report falls on the police force.

If a country coroner considers that an expert report is necessary to advance or bring an investigation to a conclusion but the police force will not pay for the report, he or she should contact the State Coroner to discuss the matter.

The Office of the State Coroner can provide assistance to coroners in identifying suitable experts.

What should a coroner do upon receiving a brief of evidence?

The coroner’s brief is not complete until the police investigation brief and the medical evidence, in particular the post mortem report, are compiled.

The first task of a coroner upon receiving the brief is to assess whether it adequately deals with the principal questions a coroner must seek to answer. In particular, he or she should ask whether it answers the questions:

  • has a person died?

  • if so, does the evidence disclose the identity of that person?

  • does the evidence prove the date on which, or the range of dates during which, the person died?

  • does the evidence prove the place at which the person died?

  • does the evidence sufficiently disclose the direct cause of death?

  • does the evidence sufficiently disclose the manner of the person’s death?

The practice in coronial briefs is for the officer in charge to summarise the evidence in one lengthy statement at the top. The officer in charge will also provide an opinion as to the cause and manner of death and will sometimes refer to potential persons of interest — a significant departure in this jurisdiction from ordinary police practice.

This provides the coroner with an overview of the case. It also enables the coroner to quickly identify the key witnesses. In some instances, where the evidence is uncontroversial, it may be sufficient simply to call the officer in charge.

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

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

  • persons of interest have been identified

  • potential witnesses of value remain to be interviewed

  • other lines of inquiry should to be followed

  • the investigator has made recommendations for remedial action

  • the case raises issues of general public interest, particularly health or safety matters, raising the potential of making useful recommendations if an inquest is conducted.

Experience has shown that in about 90 per cent of cases, the holding of an inquest can be dispensed with because the answers to the questions are relatively clear and there are no general issues of public interest to pursue.

If problems arise, they tend to cluster around the question whether a cause of death can be found (a medical issue which the post mortem report often fails to resolve), or whether the manner of death can be determined (a factual issue towards which the police investigation is directed).

The standard practice at the NSW Coroners Court — Sydney is that, once the brief and post mortem reports are received, a coroner will review them and make a determination whether to dispense with an inquest.

If the coroner makes a determination that the matter should go to inquest, the file with the brief and post mortem report are sent either to a police advocate or, in appropriate cases, to the Crown Solicitor who will then review the material, analyse the issues and prepare it for inquest.

Part of this process is for the advocate or Crown Solicitor’s lawyers to identify any shortcomings or gaps in the evidence and to propose further lines of inquiry for the investigating police. These should be settled with the coroner who then issues further directions to the officer in charge through his or her assisting advocate: s 51.

Once the investigation is complete, if the matter is of any complexity, the coroner should request the advocate assisting him or her to produce a short written review:

  • analysing the issues

  • outlining the available evidence

  • identifying the principal witnesses to be called.

The coroner should then:

  • read and consider the review and the brief

  • arrange a conference with the advocate, and possibly the officer in charge, also to settle the issues to be explored at the inquest and the witness list.

Ideally, before that conference occurs, the advocate will have obtained available dates of potential witnesses so that the matter can be set down without further delay.

While an advocate’s review of the brief is standard practice in the Coroners Court, country magistrates may have to direct the production of such a document by their advocates.

[50-140] Releasing sensitive or distressing information

What information may a coroner release and to whom?

The release of information raises a number of complex problems for coroners. Coronial files, especially police briefs, are inherently distressing, especially for grieving relatives. They also contain much personal information about the deceased person and frequently other people.

Coroners must therefore be very sensitive both to the feelings of relatives and to the potential for gross breaches of privacy if access to coronial files and records is not carefully controlled.

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.

Section 65 governs access to coronial files and records before and during coronial proceedings.

Coroners receive frequent requests for information. Many of these come from families. Others come from lawyers representing interested parties in proceedings. Still more come from organisations such as insurers who have an interest in the outcome of proceedings but are not participants. Others come from the media, television producers and researchers.

Section 65(2) grants power to a coroner to give access to coronial records to a person requesting it, if:

(a) 

the coroner considers it appropriate, and

(b) 

a fee is paid.

The factors a coroner must take into account in deciding whether it is appropriate to disclose coronial records 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

  • any other relevant matter.

If coronial proceedings are to be listed for an inquest, it is usual practice for the coroner to forward a copy of the brief of evidence to interested parties including the senior next of kin. Coroners should not, generally, send explicit and sensitive material such as photographs or the post mortem report out with the brief: see further discussion Should the family be given distressing records? at [50-140]; whether persons of interest should be given a copy of the brief is discussed Must a coroner release information to a person of interest? at [50-140].

Should the family be given distressing records?

Information such as post mortem reports and photographs of a death scene, which are confronting and upsetting, should never be forwarded to a family member when that material has not been specifically requested.

Sometimes a family will request a copy of the brief when considering whether they will request that an inquest be held.

The brief of evidence will ordinarily contain death scene photographs and other very confronting material. Even if a brief is requested, it is highly desirable and recommended that the coroner arrange for CISP officers to contact the senior next of kin to discuss the information contained in the brief of evidence and to clarify what information is sought by the family.

If a senior next of kin requests access to sensitive or distressing information or photographs, coroners should also contact CISP officers to determine how that access should be facilitated. In many instance it may be preferable to arrange for the relative to see distressing information in the presence of a CISP officer or another counselor.

CISP officers can provide advice on the appropriate ways of dealing with these issues.

Must a coroner release information to a person of interest?

In Musumeci v Attorney General of NSW (2003) 57 NSWLR 193, a coroner was criticised by the Court of Appeal for withholding certain documents from a person of interest for tactical reasons during an inquest. This case is often cited by lawyers as authority for the proposition that a coroner must provide a copy of a full brief of evidence to a person of interest before an inquest begins.

That proposition is incorrect and based on a misunderstanding of what the case decided. Musumeci v Attorney General, requires that coroners observe the rules of procedural fairness. It also requires that adequate reasons be given by coroners if they refuse to disclose information to an interested person during an inquest.

But the rules of procedural fairness are not necessarily breached by a withholding of information for a limited period to prevent a witness tailoring his or her evidence, provided that the witness is given a fair chance afterwards to deal with any material adverse to his or her interests: Maksimovich v Walsh (1985) 4 NSWLR 318 at 328 per Kirby P.

It is common practice in cases of alleged fraud for critical evidence to be withheld until after the cross-examination of certain parties or witnesses for this reason. The ultimate test is “whether the interests of justice are better served by doing so”: Broadwater Taxation and Investment Services Pty Ltd v Hendriks (1993) 51 IR 221; see also Markus v Provincial Insurance (1983) 25 NSWCCR 1; Queensland Mines v Hudson (1976) CLC ¶40–266.

It is suggested that a coroner is entitled to withhold material from a witness if there is a bona fide fear or suspicion that it will enable that person to tailor evidence or is otherwise in the interests of justice.

If release of the brief may prejudice an ongoing police investigation or a future trial, it may be appropriate to withhold some information at least prior to the inquest. In the primary decision in Musumeci v Attorney General of NSW [2002] NSWSC 425, Hidden J endorsed the coroner’s decision on the basis that the integrity of an ongoing police investigation would be compromised. The Court of Appeal accepted that this was a proper basis for withholding information but was not persuaded, on the facts of the case as outlined in the coroner’s reasons, that the investigation would in fact have been jeopardised: see also Maksimovich v Walsh.

Further, a valid public interest immunity claim will generally override a claim to procedural fairness: see Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74; R v Khazaal [2006] NSWSC 1061; Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.

[50-160] The decision whether to hold or dispense with an inquest

When is an inquest required?

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

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

  • cases in which a person dies in custody or in the course of police operations: ss 23 and 27(1)(b)

  • cases in which the evidence presented to the coroner does not sufficiently disclose whether a person has died: s 27(1)(c)(i)

  • cases in which the evidence presented to the coroner does not sufficiently disclose the identity of the deceased, or the date, place, cause or manner of his or her death: s 27(1)(c)(ii) and (d)

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

A fairly common issue for a coroner is the question whether a missing person is alive or dead. If the evidence in the police brief does not enable the coroner to come to a satisfactory conclusion on the balance of probabilities, an inquest must be conducted.

Another common problem is that the autopsy report will provide no clear cut or probable cause of death. Some causes of death leave no pathological signs and a forensic pathologist may report that the cause of death is unable to be determined. In such instances, a number of possibilities may present themselves, for example, epilepsy, cardiac arrhythmia, diabetes.

In such cases, before an inquest is ordered, it is advisable to seek a review of the medical evidence by the Chief Forensic Pathologist or another senior forensic pathologist. If after such a review, no satisfactory direct cause of death can be ascertained and the medical and police evidence indicates that the death is from natural causes, the coroner may dispense with an inquest: s 25(1) and (2). This is whether or not requested to do so by the family of the deceased.

When may a coroner dispense with an inquest?

Except where an inquest is mandatory, a coroner has the discretion to dispense with an inquest: s 25. Factors that may guide the exercise of the discretion include:

  • Whether the identity of the deceased is known and the date and place of death are satisfactorily disclosed.

  • Whether the cause and manner of death are satisfactorily disclosed on the evidence. For example, if a person is found hanging and a suicide note in that person’s handwriting is found, the person has a history of suicidal ideation, and the circumstances are otherwise not suspicious, this may be sufficient to satisfy a coroner that it is appropriate to dispense with an inquest.

  • Whether the deceased’s family request an inquest and provide a cogent reason(s) for doing so.

  • Whether the case raises issues of public health or safety, and

  • If so, whether an inquest is likely to lead to recommendations that will assist with the prevention of future deaths of a similar kind. On the other hand, if remedial action has been taken so that an inquest will not result in useful recommendations, the argument for dispensing with an inquest becomes stronger.

If the identity of the deceased and the date, place, cause and manner of death are all clear, there is no particular issue of public health or safety to address, if there are no suspicious circumstances and no compelling request for an inquest has been made, a coroner will ordinarily dispense with an inquest.

If, on the other hand, there are live questions about these issues, an inquest should be considered.

Should a coroner consult with next of kin before dispensing with inquest?

If a next of kin has been identified, he or she should always be asked whether or not he or she wishes an inquest to be conducted.

If a police investigation is conducted, the officer in charge should, as a matter of course, file with the brief, a notice from the next of kin stating whether or not an inquest is requested. Often, however, this is not done.

If, after considering the evidence, the coroner comes to a preliminary view that the evidence satisfactorily discloses the answers to the questions concerning identity, date, place, cause and manner of death, and there do not appear to be any particular public interest issues which should be investigated, he or she should write to the next of kin stating this and asking whether an inquest is sought.

At the NSW Coroners Court — Sydney, the standard practice is to send a letter to the next of kin requesting a reply within 30 days if they are not legally represented or, if they have a lawyer, to send a letter to that representative requesting a reply within 60 days.

Must a coroner provide reasons for dispensing with inquest?

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 Circular Nos 69 and 70.

A coroner is required to provide written reasons if so requested by the State Coroner, the Attorney General and any person with a sufficient interest in the circumstances of the death or suspected death: s 26(1).

A coroner may refuse to provide written reasons for dispensing to a person who does not, in the coroner’s opinion, have a sufficient interest in the circumstances of the death but is required, on that person’s request, to give written reasons for the refusal: s 26(2).

Who has a sufficient interest to request reasons for dispensing?

The Coroners Act does not define a sufficient interest but s 57(3) deems a relative to be a person with a sufficient interest to appear in an inquest. It seems to follow that relatives have a sufficient interest to request written reasons for dispensing with an inquest.

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

Persons other than relatives, as defined in s 5, may also have a sufficient interest but this will depend on the individual circumstances of the case. In practice, usually family members who seek reasons for an inquest being dispensed with.

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: s 25(3).

It is arguable, however, that even if no fresh evidence or facts are produced, for example, a fresh argument may be raised by a relative placing a different interpretation on known facts, a coroner who has previously dispensed with an inquest may commence one. As no coronial proceedings have taken place, nor any determinations 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.

[50-180] The inquest — preliminaries

The inquest — how does it differ from the usual court case?

Inquests are inquisitorial in nature, resembling commissions of inquiry rather than criminal or civil litigation.

Coroners may be likened to European investigating magistrates; they control the agenda and the proceedings. They are assisted by a police advocate or counsel and work with them. They choose which witnesses to call or not call. They give directions to police investigators as to the inquiries they need carried out.

Although there may be persons of interest and persons who have a sufficient interest in the circumstances of the death in question to be involved, there are no parties as we usually understand the term. Rather, these persons are generally witnesses.

Apart from relatives who have a statutory right of appearance (s 57(3)), all other persons appear by leave only: s 57(2). A coroner must be satisfied that a person seeking leave to appear has a sufficient interest.

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

How should a coroner prepare for an inquest?

For a coroner, preparation for an inquest is similar to that of an advocate or a litigation lawyer. It involves the following steps:

  • Analysis of the brief and identification of the issues and witnesses to be called. Note that coroners have the latitude to include or exclude witnesses and that latitude should be used to make the inquest as succinct and focussed as possible.

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

  • Identification of the need for expert evidence, if this has not been done during the course of the investigation and the obtaining of relevant expert reports.

  • Before the inquest begins, it is important to identify persons who may have an interest in the proceedings. Some of these may be, for example, next of kin or statutory authorities or government authorities. Others will be persons of interest. While the term, persons of interest, is not used in the Coroners Act, it is a label applied in practice to those who may be the subject of a referral under s 78 by the coroner to the Director of Public Prosecutions.

  • Persons of interest must be notified in writing before the inquest that their interests may be adversely affected by the anticipated evidence and suggesting that they seek legal advice and representation.

  • Other persons who may be the subject of criticism should also be notified and advised that it may be in their interests to obtain legal advice and representation.

  • Copies of the brief should be sent to interested persons, unless there is a compelling reason not to do so: see Must a coroner release information to a person of interest? at [50-140]. They should be requested to identify any issues that they wish the coroner to consider and to nominate any witnesses they request the coroner to call for examination and to provide reasons for desiring the witness(es) to be called.

  • If the matter is of any complexity, a directions hearing is desirable to sort out any interlocutory issues or controversies, to outline, if appropriate, the coroner’s list of issues to the interested parties and to set any ground rules the coroner proposes for the conduct of the hearing: s 49 provides that a coroner may issue case management directions. This will help the coroner estimate the likely length of the hearing.

  • In matters in which 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 request that the Crown Solicitor’s Office provide counsel assisting.

  • In complex matters, coroners should also consider requesting the assistance of the Crown Solicitor’s Office.

  • It is frequently useful for a coroner to conduct an informal view with counsel assisting and the officer in charge to enable him or her to grasp the evidence better. This is not a substitute for a formal view during the inquest which then becomes part of the evidence.

  • If the case involves questions of public health or safety, the coroner and counsel assisting should also turn their minds to potential policy issues and recommendations. A list of possible recommendations may be drafted at this stage.

  • If recommendations are contemplated, a check should be made with the State Coroners Office and a further check conducted on the National Coronial Information System for recommendations made in similar matters. This can be done through the State Coroner’s Office: see State Coroner’s Circular No 72.

  • Subpoenae 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, video equipment should be organised.

How does a coroner work with counsel assisting?

Magistrates, who are experienced in dealing with civil and criminal litigation, where they are required to adopt the stance of a referee between two parties, may find an inquest is an unusual undertaking.

Curiously, no mention is made 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.

Counsel assisting and the instructing solicitor will liaise with the police investigator with carriage of the matter on behalf of the coroner.

The relationship between coroner and counsel assisting is unique. There is no bar to discussions before, during and after the evidence. Similarly the officer in charge of the case can be consulted by the coroner as to the issues and nuances of the case.

Discussions with legal representatives of interested persons or organisations, however, are best conducted in court unless there is a compelling reason to do otherwise. If private discussions are conducted with legal representatives for interested persons, counsel assisting, his or her instructing solicitor or the police advocate should be present. A comprehensive file note of those discussions should be kept and placed on the coroner’s file.

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

Unlike other judicial officers, a coroner is not a passive recipient of a case brought before him or her. Without prejudging the issues, the coroner must drive the inquest towards answering the critical questions.

It is therefore critical that coroners provide guidance to counsel assisting as to how he or she wishes to conduct the inquest and that counsel assisting assists the coroner in keeping the inquest focussed on the issues. Counsel assisting is the coroner’s adviser but, ultimately, the coroner must make the decisions about issues to be explored, witnesses to be called, conclusions that will be drawn and recommendations that will be made. Confidence, trust and mutual recognition of their proper roles is therefore imperative for both coroner and counsel assisting.

Country magistrates may, naturally, feel uncomfortable working hand-in-glove with a police advocate whom they ordinarily keep at arm’s distance. If so, it is suggested that they seek to arrange for 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 Coroners Court advocates.

As noted How should a coroner prepare for an inquest? at [50-180], if a matter is complex, or if police may be subject to criticism, it may be more appropriate for the Crown Solicitor’s Office to provide assistance to the coroner than a police advocate. Coroners should, however, first consult the State Coroner before requesting such assistance.

Can a coroner or a relative request a jury for an inquest?

Only the State Coroner can order that a jury be called and then only in an inquest or inquiry over which he or she presides: s 48.

Who may appear at an inquest?

Persons with sufficient interest may be granted leave to appear in inquests and inquiries: s 57. 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, riders, recommendations or reasons for decision or to whom recommendations may be made.

Unless exceptional circumstances dictate otherwise, relatives of the deceased person, 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.

It is debatable whether insurers have 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, for example, examining a person in relation to a suspicious fire. Applications from insurers should be closely scrutinised. Inquests are not dry runs for later civil litigation.

Parties must seek leave to appear and demonstrate to the coroner that they have an interest to protect by appearing. If they cannot do so, they should be allowed to attend the inquest or inquiry with a watching brief. If a coroner thought it appropriate, he or she might invite a person with a watching brief to make comment or submissions before making findings, but this would be the exception rather than the rule.

Persons granted leave to appear are entitled to be legally represented: s 57.

Government agencies and the model litigant policy

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

They are bound by the NSW Department of Justice, Model Litigant Policy, September 2004. It is 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 co-operate with, and provide as much reasonable assistance to, him or her as is consistent with their duty to represent their clients’ interests.

What should a coroner do if a lawyer has a conflict of interest?

In some cases two or more interested persons may be represented by the same lawyer(s). In such cases, there may be a conflict of interest. In many such cases, the conflict or potential will be evident before an inquest commences. In others, it may only become evident during the course of the evidence.

If the potential or actuality of conflict is clear before the inquest, coroners should raise the issue with the persons and their lawyers. This can be done in the first instance by having counsel assisting, or his or her instructing solicitors, write to the lawyers pointing out the potential or real conflict and advising them to consider their position. The letter might also suggest taking advice from the Law Society of NSW or NSW Bar Association, whichever is appropriate, on the ethical position.

If that fails to resolve the problem, a coroner may raise the question at a directions hearing well before the inquest commences and advise the lawyers and their clients of the court’s view and of the difficulty a conflict creates for the proper conduct of an inquest.

Leave to appear is granted to an interested person, not a lawyer.

A person’s right to counsel of choice is not absolute but is subservient to other interests such as the maintenance of client confidentiality and the avoidance of conflicts of interest: Burnett v DPP (2007) 21 NTLR 39 at [131]; Equiticorp Holdings Ltd v Hawkins [1993] 2 NZLR 737.

Coroners, like other judicial officers, have a duty to maintain the integrity of the court’s process. If a coroner is satisfied that a conflict of interest has emerged, he or she should require the lawyer to withdraw and, if necessary, give his or her clients an adjournment in which to seek fresh representation.

The option of allowing the lawyer to elect is not open because once he or she has taken instructions from the two persons whose interests conflict, he or she has privileged information relating to the person he or she no longer represents.

What procedures are adopted in an inquest?

As noted at The inquest — how does it differ from the usual court case? at [50-180], the rules of evidence and procedure do not apply in coronial proceedings. The usual process in an inquest is as follows:

  • the coroner announces the case: “This is an inquest into the death of …”

  • appearances are taken, beginning with counsel assisting or the police advocate

  • the coroner might then make some introductory remarks: see How should a coroner open an inquest? at [50-200].

Counsel assisting should then make an opening address, painting in the background to the case, outlining the issues to be investigated, the statutory questions the inquest hopes to answer, and highlighting the key features of the anticipated evidence.

The officer in charge is often called first to give an overview of the investigation. Note that it is customary for the officer in charge to conclude by offering opinions concerning relative issues raised by the inquest.

Some coroners request that the officer in charge read his or her statement onto the record. This can be very tedious and sometimes leads to inappropriate evidence being publicised. The better practice, therefore, is to have the advocate or counsel assisting lead the officer in charge through the statement, highlighting the significant portions of it. If that is done, it is important for counsel assisting to remember that spectators need to follow the evidence which must be led so that a coherent summary emerges. The brief of evidence is normally tendered through the officer in charge.

If a view is to be conducted, it is often useful for it to be conducted immediately after the 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 all witnesses are called by the coroner. Interested parties may make suggestions to the advocate/counsel assisting or the coroner, but it is ultimately the coroner who determines which witnesses are called and the order in which they are called. If counsel assisting is competent and well-prepared, most of the evidence will be adduced by him or her.

Any documents sought to be relied on by parties should be shown first to counsel assisting and, if appropriate, tendered through him or her.

While counsel representing interested parties has 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.

Although the rules of evidence and procedure do not apply, procedural fairness is critical: interested persons are entitled to appear, to be legally represented, to examine witnesses — at least in relation to their own interests, to know what is alleged against them, to answer the allegations and argue against any finding or comment being made adverse to their interests: Annetts v McCann (1990) 170 CLR 596; Musumeci v Attorney General of NSW (2003) 57 NSWLR 193.

“Persons of interest” or persons against whom adverse comment may be made, for example, police officers directly involved in the operation during which a person died are, as a matter of fairness, usually called last.

The usual practice is that they are given the opportunity to sit in court during the evidence given by other witnesses to which they can respond when their turns come. Coroners may, if they consider it to be in the interests of justice, order witnesses to leave the courtroom until called.

At the conclusion of the evidence, the advocate or counsel assisting may address the court, suggesting findings that should be made and proposed recommendations if appropriate.

Interested persons 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.

Following addresses, the coroner sums up the evidence in relation to the issues: whether there has been a death, the identity of the deceased, the date, place, cause and manner of death and, if possible, delivers findings in respect of each of them.

The exception to this procedure is where the evidence discloses that a known person, usually a person of interest may have committed an indictable offence in which the question whether the person charged or the known person caused the death or suspected death is in issue: s 78(1)(b) Coroners Act 2009. For further discussion, see When must a coroner suspend an inquest? at [50-220].

[50-200] Conducting the inquest

How should a coroner open an inquest?

After appearances are taken, a coroner may take the opportunity to make some short opening remarks.

He or she may enquire whether members of the deceased’s family are present. If they are, he or she might briefly offer formal respects:

An explanation of the role of the coroner and the inquest helps all persons present, especially family members, understand the process and the questions the coroner must address.

Coroners are cautioned, however, not to say anything at this stage that may heighten the expectations of or raise false hopes in family members. If those hopes and expectations are dashed, it creates further pain for the family, is likely to destroy the coroner’s credibility with them and leaves them with a bitter residue of resentment against the judiciary and legal system.

Sensitivity towards grieving families

The need for sensitivity to the grief and, sometimes, anger of grieving families is self-evident.

It is preferable to use the name of the dead person rather than to call him or her the deceased. For the benefit of grieving families, it may, in some cases, be appropriate to refer to the deceased by his or her given name. The family may be asked by what name they would prefer the deceased to be referred.

It is vital that at no time does a family gain the impression that their views and feelings are less significant than those of others.

They should be invited to tell the court about the person whom they knew before his or her death, if they wish to. This can be helpful to relatives who find that the grieving process is distorted by the need to deal with an inquest. The emotions are often heightened by the delay in bringing a matter to inquest and the publicity it may attract.

On the other hand, it is very important not to raise expectations that cannot be met.

Coroners should also take advice, if needed, from the CISP staff.

Is an inquest a vehicle for civil litigation?

Many persons, including insurers, seize the opportunity an inquest presents to formulate their own agendas with a view to later civil litigation.

While there is often overlap between an inquest and a family’s agenda of developing a civil case against another person, an astute coroner will recognise this and not allow an inquest to be diverted or hijacked for other purposes. It is essential that an inquest not be allowed to be misused as a vehicle for what is, in effect, a civil discovery.

Is legal aid available in inquests?

Legal aid may be available for unrepresented persons with a “sufficient interest” that is,; for families in inquests and may also be available for some persons of interest from Legal Aid NSW.

According to the Legal Aid NSW policies, legal aid may be provided in inquests “where representation at the inquest is a preliminary step to civil proceedings” and the applicant meets the Legal Aid NSW merit, means and other tests: for further details see <www.legalaid.nsw.gov.au> Legal Aid NSW, Policy Online at 6.12. Legal aid may also be provided if the applicant meets a public interest test.

Examples of the types of inquests that might give rise to a public interest are set out at 6.12.3 of the policy and include the death of:

  • an Aboriginal or Torres Strait Islander in custody

  • a child in a childcare centre

  • a person in police custody

  • a person in a psychiatric hospital

  • a person in a juvenile justice centre

  • a person in a community welfare centre.

For those refused legal aid, pro bono schemes may be approached.

Advice to this effect can be offered by coroners to families and unrepresented persons with an interest in the proceedings when notifying them that an inquest is to be conducted. A further reminder may be offered at a directions hearing, if held.

Is a coroner bound to adjourn for legal aid review appeals?

Section 57 Legal Aid Commission Act 1979 provides that parties to proceedings in any court or tribunal who have been refused legal aid may have an adjournment while the Legal Aid Review Committee considers their appeals.

Whether a person of interest or any other person who is refused legal aid at an inquest is a party to a proceeding is debateable. Do you want to limit this to persons of interest or also make reference to families? There is no clear authority on the question. The better view is that, as there are no parties, that is, persons who may be subject to an adjudication of their rights or liabilities in an inquest, persons of interest do not fall within the scope of s 57 Legal Aid Commission Act 1979. A coroner therefore retains a discretion to adjourn or not.

How should a coroner manage unrepresented next of kin?

Coroners will recognise and respect the special position of next of kin in an inquest. Where they are not represented, coroners should do their best to investigate any issue or question raised by them materially relevant to the inquest.

As suggested in How should a coroner open an inquest? at [50-200], in opening an inquest, a coroner should welcome the family members and pay respects to them and explain the procedure to them in simple terms.

Family members, being distressed and unfamiliar with courtrooms, frequently become distracted by minor and irrelevant inconsistencies or gaps in the evidence. Patience and understanding is needed in dealing with these concerns. In some cases, it may be necessary to divert the family member from a line of enquiry by gently explaining its irrelevance.

In other cases, especially where with the issue is not time-consuming, it may be appropriate to pay it attention even if the coroner regards it as unlikely to be productive.

Does the privilege against self-incrimination apply in inquests?

Witnesses are entitled to object to answering questions if a truthful answer may tend to incriminate them: s 58.

The first question for the coroner, being familiar with the brief and anticipating the objection, is whether the question has a tendency to incriminate.

Homicide cases raise the question acutely. In Correll v Attorney General of NSW (2007) 180 A Crim R 212, a case concerning an inquest into a homicide, Bell J cautioned at [37]:

it is difficult to conceive of a question relevant to the manner and cause of the death of [the deceased woman] that could not be seen to be free of the potential to incriminate the plaintiff.

Bell J cited with approval the observation of Baron Alderson in Osborn v The London Dock Company (1855)10 Ex 698 at 701 in Correll v Attornery General of NSW at [29] that:

a question which might appear at first sight a very innocent one, might, by affording a link in the chain of evidence, become the means of bringing home an offence to the party answering.

While it will be necessary for coroners to satisfy themselves first that the objection is properly grounded, this will usually be apparent from the coroner’s reading and analysis of the brief: Sorby v Commonwealth of Australia (1983) 152 CLR 281 at 288–289; Correll v Attornery General of NSW at [28].

Must a coroner warn a witness?

The problem of warnings for witnesses is particularly acute for unrepresented persons but can also arise when their representatives overlook the jeopardy their clients may be facing.

Coroners, as a matter of fairness, should advise a witness of his or her right to object if a truthful answer may tend to incriminate.

May a witness take a global objection to giving evidence?

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 Correll v Attornery General of NSW at [32] and [55], Bell J, in obiter dicta, approved the practice, on the parts of persons of interest, of taking a global objection. That decision, however, was contrary to a line of authority to which her Honour was apparently not referred including a decision of the Court of Appeal, in Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412. It was said that global objections could not be taken. That case was followed in Wilson v Deputy State Coroner (1995) 124 FLR 388, a decision of a single judge of the NSW Supreme Court: See also Wright v Clarkson [2000] NSWSC 669 at [8]. In each of these cases, however, the commentary on global objections were also made in obiter dicta.

The reconciliation of the two apparently conflicting lines of authority lies in determining whether, on all the known and anticipated evidence, the line of questioning is one in which any question, if relevant, is likely to have the tendency to incriminate the witness or whether there is other relevant but non-incriminating material the witness can give.

If the former is the case, it is probably appropriate for a witness to make a global objection to giving evidence. Notwithstanding the views expressed in Correll v Attornery General of NSW by Bell J, that it is difficult to conceive of any question and answer which might not be potentially incriminating for some witnesses in certain types of cases, if such a question or line of questions could be asked, objections should be taken on a question by question, or topic by topic basis as is the more usual course.

If a global objection is taken, the coroner is, nevertheless, entitled to proceed question by question but may consider that the futility of such a process is both inefficient and possibly oppressive. It is suggested that, if the coroner is satisfied that any answer except the formal particulars of the witness is likely to be a link in a self-incriminating chain, unless it is intended that the witness be compelled under the protection of a certificate, the better course is simply to call the witness, obtain his or her formal details and stand the witness down again.

In other cases, the issue may not be clear cut. It is suggested that even where a witness is legally represented and wishes to claim privilege against self-incrimination, that witness should still be called and, if appropriate, taken through the process of answering questions to a point where the coroner is satisfied that further examination will expose the witness to danger of self-incrimination.

Should a coroner compel the answer and issue a certificate?

If the objection is upheld, the coroner may then consider whether to compel the witness in the interests of justice (s 61(4)) to answer the questions under the protection of a certificate issued pursuant to s 61: s 61(5) and (6). This is the coronial equivalent of a certificate under s 128 Evidence Act.

Whether it is in the interests of justice for a witness to be compelled to answer is dependent on all the circumstances. The phrase is to be interpreted broadly: Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187 at [37] and [38] per Sheller JA. In S Odgers, Uniform Evidence Law, 7th edn, Lawbook Co, Australia, 2006, p 584 the following criteria, as adapted to coronial proceedings, are suggested:

  • the importance of the evidence in the proceeding

  • the likelihood that the evidence will be unreliable even if a certificate is granted

  • whether the person giving evidence is a person of interest or not

  • the nature and subject matter of the inquest or inquiry

  • the extent of the witness’s apprehended or potential liability

  • the likelihood of any prosecution or other action flowing from the evidence

  • the likely effects of giving the evidence

  • the means available of limiting any publication of the evidence

  • the desirability of limiting any publication of the evidence

  • whether any criminal or civil proceedings relating to the witness and the subject matter of the inquest or inquiry have concluded

  • if the witness is not required to give evidence, the way the refusal to give evidence is to be dealt with by the coroner

  • the availability of the evidence from other reliable or more reliable sources.

The issuing of a certificate requires careful consideration. Evidence given under the protection of the certificate may not be used directly or indirectly by police or investigators in NSW and therefore may taint or retard future investigations: s 61(7) — this proviso only relates to NSW proceedings but self-incriminating evidence gathered in NSW and used in other jurisdictions would be likely to be excluded as unfair or unfairly obtained.

On the other hand, it may well be the case that it is appropriate to issue a certificate to allow a minor witness to give evidence free of risk with a view to assisting establish the primary responsibility for the death.

The advice of the police officer in charge of the investigation and counsel assisting should be obtained before a coroner decides whether or not to issue a s 61 certificate.

Note that a certificate issued under s 61 provides no protection outside NSW or in federal proceedings. This may be a relevant consideration for a coroner in determining whether to compel a witness to answer over objection.

If possible, this should be anticipated before the inquest commences and certainly before the witness is called so that there is a clear plan of action and no delay is caused by the decision-making process.

May a witness refuse to be examined?

Witnesses are not permitted, without lawful excuse, to refuse to be examined if required by a coroner to give evidence. The possibility that their evidence, if given, will be self-incriminating is not a lawful excuse: Wright v Clarkson [2000] NSWSC 669.

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. It is a narrower concept than “reasonable excuse”: Ganin v NSW Crime Commission (1993) 32 NSWLR 423 at 437 per Kirby P; see also Wright v Clarkson.

Whether a refusal to be examined is a contempt of court will depend on the circumstances. There may be an earnest but erroneous belief behind the refusal lacking contempt. On the other hand the refusal may be an expression of defiance and disrespect.

What can a coroner do about a missing witness?

As in other courts, if a witness fails to appear in coronial proceedings, a coroner may issue an arrest warrant: s 69.

Once a witness is arrested, the Bail Act 2013 applies in the same way as to an accused person: s 71(4).

Can a coroner admit confidential evidence without disclosing it to a person of interest?

Ordinarily, the rules of natural justice dictate that any evidence tendered which is adverse to a person’s interest should be disclosed to that person and he or she given an opportunity to be heard and to meet it.

On rare occasions, evidence in relation to which a public interest immunity claim is successful may be admitted without being disclosed to the interested person: Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74; R v Khazaal [2006] NSWSC 1061; Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.

In Nicopoulos v Commissioner for Corrective Services, the question whether it is unfair to admit certain documents over which a public interest immunity claim has been upheld was considered. A solicitor was banned from NSW prisons. He sought orders from the Supreme Court quashing that ban. Corrective Services NSW filed three confidential affidavits which the judge read and admitted but did not provide to the plaintiff. He held that, in the particular circumstances of the case, the material was admissible and relevant and highly probative but that to disclose it would be inimical to the public interest. That decision was cited with approval by the Full Court of the Federal Court in Hussain v Minister for Foreign Affairs.

Such confidential information may be privileged because, for example, it would reveal information about informers, police methodology or ongoing investigations.

How should a coroner proceed if confidential information is to be admitted?

The Coroners Act and authorities provide little guidance as to how a coroner should resolve the tension between admitting important confidential information and ensuring procedural fairness to a person who may be in jeopardy of being referred to the Department of Public Prosecutions (DPP) pursuant to s 78.

The approach taken by the Independent Commission Against Corruption (ICAC) and Police Integrity Commission may be useful. It is suggested that a coroner could take the confidential evidence in closed court, making suitable non-publication orders. This might include taking confidential oral evidence from, for example, an informer or whistleblower. That evidence could be tested by counsel assisting and the coroner and its credibility and reliability assessed. Counsel assisting might, for example, cross-examine an informer.

If, having heard and assessed the evidence, the coroner came to a preliminary view that the evidence was credible and that there was a real prospect of s 78 being triggered, a decision would then have to be made whether or not to disclose the information and give the person of interest a chance to be heard in respect of it. Before such a decision is made, however, the agency claiming public interest immunity over the information should be consulted by counsel assisting and, if appropriate, invited to make submissions to the coroner.

If persuaded that disclosure of the confidential information would jeopardise the public interest in a significant way, a coroner could exclude that material from the evidence retrospectively. This may result in no referral being made to the DPP or open findings being made in respect of certain matters or both.

Alternatively, if a valid public interest immunity claim is made, the coroner may use and rely on the confidential information to refer the person of interest to the DPP without making that information available for comment by the person of interest: Nicopoulos v Commissioner for Corrective Service; R v Khazaal; Hussain v Minister for Foreign Affairs.

[50-220] Concluding the inquest

When must a coroner suspend an inquest?

It is a common misconception that inquests are criminal investigations carried out in public.

While coroners must inquire into suspicious deaths, they are forbidden from making any findings, comment or recommendations suggesting that a person has committed any offence: ss 78, 81(3) and 82(3).

Section 78 is a pivotal provision. If a coroner finds evidence that satisfies him or her that a known person may have committed an indictable offence related to the death, the subject of the inquest, and the legally admissible evidence is sufficient to raise a reasonable prospect of a conviction of that offence, he or she must suspend the inquest without making findings as to the cause and manner of death.

The test, therefore, is virtually identical to the test for committal proceedings with the added element that the indictable offence must relate to the death, the subject of the inquest: s 78(1)(b).

It is critical that coroners differentiate between evidence that is or may be legally admissible in criminal proceedings and evidence which is not. That distinction is sometimes overlooked by coroners when suspending inquests under s 78.

Hearsay and opinion evidence admitted and probative in inquests will often not be legally admissible and, if so, must be disregarded by coroners when applying the test in s 78.

In Attorney-General (NSW) v Maksimovich (1985) 4 NSWLR 300 at 314, Kirby P stated the object of s 78:

That object was to terminate the abuse of coronial inquiries including the naming of persons as suspects, although the suspicion may have arisen from inadmissible evidence and although no charge might later be brought against the named suspect. It was for this reason that the Parliament introduced the obligation of termination of the inquiry and the facility for the coroner to send to the Attorney-General the depositions and a statement specifying the name of the person suspected and particulars of the offence. The policy of the legislation is to ensure that such persons, so named, shall have the beneficial advantage of a careful, prosecutorial decision, considering admissible evidence. Neither the Attorney-General, nor named suspects, should be harassed by the pressure that might be imposed if the suspects were publicly named by a coroner in the midst of his 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.

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.

Section 78 creates a dilemma for coroners. To accord an interested person procedural fairness, a coroner must allow the witness to be heard in relation to any matter which may adversely affect his or her interest, which might include the reputation of a deceased child.

To enable persons of interest to exercise their rights to directly engage with the problem, coroners would have to announce their suspicions and the basis for a preliminary view that s 78 applies. Yet coroners are obliged by the terms of the Coroners Act, when making their findings and giving their reasons for them, to avoid indicating or suggesting in any way that a person has committed an offence.

The Coroners Act does not resolve the issue. In Maksimovich v Walsh, Kirby P suggested that the fairer course was for a coroner to be open with the person of interest so that the he or she had a chance to address the issue properly: Maksimovich v Walsh at 328.

In practice, it is suggested that counsel assisting, without urging that s 78 be applied, can assist the coroner and ensure fairness to the person of interest by outlining the evidence which may lead to that conclusion.

To protect the person of interest from prejudicial publicity, it would be open to a coroner to make a non-publication order in relation to the s 78 submissions: s 74.

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 his or her intention, the coroner should simply state that he or she has heard the submissions but intends to suspend the inquest.

What happens after an inquest is suspended?

An inquest is suspended pending the completion of criminal proceedings. After those proceedings are complete, a coroner may:

  • recommence the inquest, taking into account any fresh evidence that emerged after the suspension or evidence that would have been given but for the suspension

  • recommence the inquest making formal findings in accord with the findings made in the criminal proceedings

  • dispense with the inquest.

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.

What should go in a coroner’s report to the DPP?

When writing to the DPP following a suspension of an inquest, a coroner should provide him with the following information, the:

  • date the inquest was suspended

  • name of the known person suspected of having committed the relevant offence

  • indictable offence which the known person is suspected of having committed.

The material sent to the DPP should consist of the following:

  • an index of the material

  • counsel assisting’s opening address

  • copies of all exhibits

  • a transcript of the proceedings if available (if not available, it should be ordered)

  • an analysis of the evidence in short form, dot points are sufficient

  • a list of any obvious requisitions for further inquiries or evidence.

The analysis of the evidence should deal with, the:

  • legally admissible evidence at the inquest in terms of the elements of the suspected offence

  • credibility of the witnesses who gave oral evidence, insofar as that is relevant

  • strengths and weaknesses of the case against the known person and, in particular, the reasons why it appears to the coroner that there are reasonable prospects of conviction.

Can a coroner make non-publication orders?

Inquests attract media attention. While the media can play an important part in conveying a coroner’s public health and safety concerns to the public, it is important to remember the fundamental duty of fairness. Reputations are often at stake.

Coroners have wide powers to make non-publication orders: ss 74–76. The terms of the order must be clear and recorded on the court file.

A non-publication order may be made by a coroner if he or she considers that it is in the public interest to make it: s 74(2). If an order is made to this end, short reasons should be given by the coroner: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.

The public interest is not defined in the Coroners Act. In general terms, the concept relates to the common good or the interests of the community or society at large or even the State and is often contrasted with private interests and rights. It is not a synonym for the interests of the government. D Pearson, Auditor General of Western Australia, “Defining the Public Interest”, Australasian Council of Public Accounts Committee Conference, February 2001, Canberra, defined the “public interest” as follows:

The “public interest” is generally understood to represent a balanced approach that serves society as a whole, is focused on the longer term and is not solely in the service of special interests. At times, it may be directed towards the needs of special interest groups, but because this is seen to be for the greater good.

P Nygh and P Butt (eds), Concise Australian Legal Dictionary, 2nd edn, LexisNexis Butterworths, Sydney, 1998, defines it as:

an interest common to the public at large or a significant proportion of the public and which may or may not involve the personal or proprietary rights of individual people.

In Sankey v Whitlam (1978) 142 CLR 1 at 60 Stephen J remarked, “Relevant aspects of the public interest are not confined to strict and static classes” and said that the categories of public interest are not closed.

Non-publication orders must be considered by coroners in cases of suicide: s 75. In cases of suicide, 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).

It is also an offence for a reporter or media organisation to publish a report of questions that a coroner has disallowed or forbidden (s 76(a)), of warnings given to witnesses concerning self-incrimination (s 76(b)) or of objections to questions on the ground of self-incrimination: s 76(c). Coroners should warn reporters of these provisions when making the rulings in question.

A non-publication order is not required for these matters but a warning should be given to reporters present in court of the terms of s 76 and the consequences of publishing such reports.

The general principles applying to non-publication orders were considered in Mirror Newspapers v Waller (1985) 1 NSWLR 1. In summary:

  • The principles applying to ordinary courts concerning open justice cannot literally be applied in coronial proceedings but must be adapted.

  • An order should only be made where publication would frustrate or impede the administration of justice.

  • The category of cases in which an order can be made is not closed.

  • The onus lies on the party seeking to prohibit publication to show that it is in the interests of justice to do so.

  • An order should only be made in special circumstances. The desire to prevent embarrassment (without more) is generally insufficient.

  • Considerations of natural justice are crucial. A person against whom allegations may be made should not be tried by media or learn of the allegations against them from the media.

  • Police investigations should not be compromised or jeopardised by premature publication of allegations or suspicions.

  • A coroner may prohibit the publication of some or all of the evidence but should limit the prohibition to the extent necessary to protect the interests of justice.

What does published mean in the Coroners Act?

The Coroners Act extends the definition of published to include internet publications in a service similar to a newspaper or periodical or a wireless transmission or television broadcast: s 73.

This definition would appear to be wide enough to catch publication in blogs and other websites such as Facebook, Twitter and YouTube in which content is made available to the general public. It is unlikely, however, to be wide enough to catch private pages in websites like Facebook or other private sites accessible only by the associates or contacts of the blogger.

What findings is a coroner required to make?

If the evidence enables a coroner to do so, he or she must make findings at the conclusion of an inquest on the following issues:

  • whether a person is dead

  • if so, the identity of the deceased

  • the date of death

  • the place of death

  • the cause of death

  • the manner of death.

What standard of proof applies?

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

Is the missing person dead?

It is not always clear that a missing person is dead. In some cases, although they have been missing for a considerable period, there is evidence suggesting that they may have disappeared by altering their identities for some reason. Sometimes sightings, usually unreliable, are made. Families live in hope.

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, investigations by police 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 Roads and Traffic Authority and the like. Evidence will also be taken from close friends and relatives of the deceased as to when the deceased was last seen or heard from, and whether it would be out of character for the deceased not to have made contact.

A finding that a person is dead is so serious a matter that it is probable that the Briginshaw standard of proof applies.

Who is the deceased?

Occasionally human bones are found. It is not always possible, even with DNA or dental records, to identify the person. Sometimes the bones are very old, possibly the remains of an Aboriginal person.

What was the date and place of death?

In some cases, particularly suspected homicides, there may be powerful evidence that a missing person is dead but it is impossible precisely to determine the date and place of death. In some cases it is possible, by examining data such as bank, telephone, social security records, to estimate a date of death within a few days. In other cases, however, a body is found long after death and the estimate of date of death is much less specific.

What was the cause of death?

This phrase refers to the “real cause of death … not the mode of dying” or 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. For example, if poisonous gas is inhaled, inducing fatal pneumonia, the cause of death is not pneumonia but the poisoning that caused it (these are the facts of Ex p Minister of Justice; Re Malcolm).

in so far as the terminal cause of death directly and consequentially follows from a definable event the death should be regarded as having been caused by the definable event.

What was the manner of death?

Manner of death refers to the circumstances of the death, that is, the way in which it came about. The question to be asked is how did this death happen? The question is often difficult to answer. For example, a person may die of a drug overdose. Was it a suicide or an accidental overdose?

In seeking to answer it, however, coroners are cautioned against undertaking an overly broad inquiry. 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]: R v Doogan; Ex p Lucas-Smith (2005) 158 ACTR 1 at [28]; see also Harmsworth v State Coroner [1989] VR 989.

Suicide — what special provisions apply?

The issue of suicide raises a number of problems.

There is a presumption against suicide which must be positively proved: R v Huntbach; Ex p Lockley [1944] KB 606.

Next of kin and families often feel ashamed of and stigmatised by a finding of suicide. Suicide cannot be presumed but must be affirmatively proven: Re Davis, Decd [1968] 1 QB 72. 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 p 71.

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

Section 75(5) prohibits the publication of a finding of suicide unless the coroner specifically permits the publication by order. The coroner may only make such an order if he or she thinks it desirable in the public interest to do so: s 75(6).

What is death by misadventure?

Misadventure is a finding available when a person, in the course of carrying out a lawful activity, and without any intention of harming another person, accidentally kills someone. A typical example is the hunting accident in which a shooter misidentifies a fellow shooter and kills him.

What is an “open finding” and when is it made?

“Open findings” are not mentioned let alone defined in the Coroners Act. It is a term of art in the coronial jurisdiction used when the evidence is insufficient to enable the coroner to make a finding or findings. Usually this will relate to the manner or cause of death.

For example, it may not be clear whether a person deliberately or accidentally overdosed on drugs.

Is it permitted for a coroner to “name and shame”?

Coroners are prohibited from indicating or suggesting in any way in their findings or recommendations that a named person has committed an offence: ss 81(3) and 82(3).

Nyland J noted in Perre v Chivell (2000) 77 SASR 282 at [57], concerning a similar provision in the Coroners Act 1975 (SA) the following:

As I have already mentioned, s 26(3) refers not only to findings of criminal or civil liability, but also any “suggestion” thereof. The addition of the word “suggestion” is liable to cause confusion as it might be argued that the mere finding of certain facts can, in cases such as the present, suggest or hint at criminal or civil liability and hence breach the section. This is due to the fact that certain acts, such as, in this case, sending a bomb, appear to have no possible legal justification. However, I do not think that s 26(3) should be read in such a way. The mere recital of relevant facts can not truly be said, of itself, to hint at criminal or civil liability. Even though some acts may not seem to be legally justifiable, they may often turn out to be just that. For example a shooting or stabbing will, in some circumstances, be justified as lawful self-defence. As I have stated, criminal or civil liability can only be determined through the application of the relevant law to the facts, and it is only the legal conclusions as to liability flowing from this process which are prohibited by s 26(3). Thus, the word “suggestion” in this section should properly be read as prohibiting the coroner from making statements such as “upon the evidence before me, X may be guilty of murder” or “X may have an action in tort against Y” or statements such as “it appears that X shot Y without legal justification”. In other words, the term “suggestion” in s 26(3) prohibits speculation by the coroner as to criminal or civil liability.

The Victorian Court of Appeal has made similar comments concerning the Coroners Act 1985 (Vic): Keown v Khan [1999] 1 VR 69 at 75–76 per Callaway JA.

It appears, therefore, that coroners can state the facts, (for example, X shot Y,) but cannot draw the legal conclusions from this, that is the province of a criminal court, (X murdered Y).

While the Coroners Act does not expressly prohibit findings that persons have committed civil wrongs, it is inappropriate and unfair for any finding to state, for example, that a person has been negligent.

It is inappropriate because it is not a coroner’s function to determine questions of criminal or civil liability. His or her task is to find the facts surrounding the cause and manner of a person’s death, not to draw the legal conclusions from those facts. That is a task for another jurisdiction.

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

Written or ex tempore reasons?

In more complex matters, especially when the coroner expects to make recommendations at the conclusion of the inquest or inquiry, it is recommended that written reasons be given so that persons, agencies and organisations affected can understand the basis for the recommendations.

In the coronial jurisdiction, because of the public interest element in findings and reasons, it is standard practice for the findings and reasons to be read in court, rather than merely published as is the case in most civil court cases. Copies of written reasons can be prepared and distributed when the findings are announced in court.

Where the issues are simple and the hopes and expectations of families have been raised for some time and no recommendations are to be made, short ex tempore reasons are recommended.

Reasons for findings should confine themselves principally to the main issues and any recommendations which flow from those reasons.

There is one exception to that general rule. The State Coroner, Qld, Magistrate Michael Barnes notes:

Family members will understandably wish their dead relative to be seen as an individual [but]

coronial investigators frequently include in their reports intricate details of the events that occurred in the minutes or hours before a person’s death, but almost nothing about his or her life.”: G Briggs (ed), “Writing Inquest Findings”, Judicial Decisions: Crafting Clear Reasons, National Judicial College of Australia, Canberra 2008, at p 9.

He recommends that in any coroner’s report a short social history section describing the deceased person’s background be included.

When and how should a coroner make 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).

Before and during an inquest, a coroner should consider whether it is necessary or desirable to make recommendations.

Before making any recommendations, a coroner should seek submissions from counsel assisting. As a matter of fairness, submissions should also be invited from any interested persons, particularly those to whom recommendations may be addressed. Usually, but not always, they will be government agencies.

Note that, although a coroner has wide scope, there must be a connection between the recommendation and the death or fire.

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

The main types of recommendations contemplated by Parliament are public health and safety matters but a coroner is not confined to them.

A pragmatic approach to the making of recommendations is recommended:

  • Be as practical and concrete as possible — vague handwringing suggestions are not useful.

  • Be realistic — recognise that government agencies and other institutions operate under budgetary restraints. They are more likely to adopt recommendations that are cheap to implement than grandiose, uncosted schemes.

  • Recognise that a coroner’s credibility is likely to be reduced by extravagant, vague or impractical recommendations and government agencies are more likely to resist them.

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

What checks should coroners make before delivering recommendations?

Many of the problems coroners confront have previously been tackled by other coroners 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 Coroners Office and also on the NCIS to make sure that the proposed recommendations have not previously been made and to ensure that potential inconsistency between recommendations is avoided if possible.

What is the National Coroners Information System?

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.

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

    • occupation at the time of incident

    • 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

    • vehicle type

    • driver/passenger

    • context

    • 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

To whom should recommendations be addressed?

If recommendations concerning government agencies are made, the coroner should make them to the responsible Minister.

A list of the Ministers administering various Acts has been circulated to coroners in State Coroner’s Circular No 73.

Other recommendations should be made to the person or body in question directly.

To whom does a coroner recommend an honours or a bravery award?

In some instances, it may be appropriate not only publicly to commend a person for his or her courage but to recommend him or her for honours or an award.

For an Australian Bravery Award or a Merit award for public servants:

The Honours Secretariat
Government House
Canberra ACT 2600

For Order of Australia nominations contact should be made with the:

Secretary
Order of Australia
Government House
Canberra ACT 2600

Full details are available on the Australian Government’s website, “It’s an Honour” at: <www.itsanhonour.gov.au/index.cfm>.

The NSW Premier’s Public Sector Awards and Emergency Awards may also be relevant. See the Premier’s Public Sector Awards website:
<www.dpc.nsw.gov.au/public_employment/honours_and_awards>.

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.

Government agencies and public officials are the subject of a protocol issued by the NSW Department of Premier and Cabinet. The protocol applies to all Ministers and NSW public officials to whom coronial recommendations are directed.

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, he or she is required to forward the recommendation to that Minister or agency and to notify the State Coroner of the referral. The recipient is then required to acknowledge receipt of the recommendation.

The Minister is then required to nominate a senior officer to review the recommendation and report to the Minister addressing:

  • the outcomes that will be achieved by implementing the recommendation

  • whether the implementation of the recommendation is the preferable option

  • if the recommendation is to be adopted, a plan for doing so

  • the time frame for implementation, and

  • the cost of implementation.

The protocol requires that Ministers generally implement recommendations unless the recommendation is impracticable due to cost or other factors or the outcome can be achieved in another way.

Ministers are required by the protocol to respond to the State Coroner within three months, providing advice on the implementation or otherwise of the recommendations. If recommendations are not to be implemented, Ministers are to explain why not.

If a full response cannot be given within three months, the protocol requires Ministers to give the State Coroner progress reports at three-monthly intervals.

The State Coroner is requested to monitor the responses and to get in touch with the Minister if a response has not been received within six months.

Can a coroner re-open an inquest to make further recommendations?

No. Once an inquest is concluded a coroner is functus officio: Decker v State Coroner of NSW (1999) 46 NSWLR 415.

What happens if a coroner cannot complete an inquest?

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, however, 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.

[50-240] Supreme Court applications

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

In such cases, the coroner is usually represented by the Crown Solicitor. The Community Relations Branch of the NSW Department of Justice generally liaises with the Crown Solicitor’s Office regarding representation of magistrates. Magistrates should direct enquiries to the Director, Community and Legal Services Division of the Department.

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 him or her of the action and the nature of the issue being litigated.

[50-260] Fire inquiries

Coroners have power to investigate the cause and origins of fires and explosions and, in limited circumstances, to conduct general, broad-ranging inquiries into the circumstances surrounding fires: Pt 3.3 ss 30–32.

Virtually the same principles apply to inquiries as apply to inquests.

What types of fires are notified to coroners?

There is no statutory requirement for fires and explosions to be reported to a coroner. In practice, coroners are notified by police of any fire where the damage is estimated to be in excess of $100,000 worth, the fire is suspicious, or a death has apparently occurred in the fire.

May a coroner dispense with an inquiry?

As in the case of deaths, coroners may dispense with the holding of an inquiry: s 31. The coroner must be satisfied either, that the cause and origin of the fire are sufficiently disclosed (s 31(1)(a)) on the evidence, or that an inquiry is unnecessary: s 31(1)(b).

What factors should a coroner take into account before dispensing?

There is no statutory list of factors to be considered. Experience, however, suggests that the following matters should be taken into account:

  • the type of fire: bushfire, house fire, grass fire, chemical fire, industrial fire

  • the type of explosion: major or minor, industrial

  • apparent cause of fire: accidental, deliberate, accelerant used, electrical, natural cause, such as lightning strike, re-ignition

  • origin of fire: location in building, vehicle, hazard reduction, back-burning, wiring, factory, waste disposal

  • property damage: National Parks, crops, commercial equipment and premises, livestock, home contents, shop or factory stock, vegetation

  • injuries or deaths to persons

  • insurance particulars

  • whether circumstances apparently suspicious

  • whether persons of interest have been identified

  • whether an inquiry has been sought by property owner, fire authorities, interested persons

  • whether there is any reasonable prospect of advancing the investigation or obtaining further information which may identify the cause, or origin or both of the fire, by holding an inquiry

  • whether an inquiry may lead to recommendations concerning issues of public interest.

In most cases reported to coroners, an inquiry is dispensed with on the basis that there is no real public interest in conducting an investigation. This is usually because the fire is minor, there is no reason to suspect foul play, there is no reason to consider that an inquiry is likely to produce more evidence than has been obtained by fire investigators, or there are no useful recommendations that a coroner is likely to make arising out of an inquiry.

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 Limited (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.

An inquiry into the cause and origin of a fire is not a general inquiry into the broad circumstances surrounding the fire. Extensive general inquiries, if conducted at all, will only be conducted by coroners at the direction of the State Coroner: s 32(2).

When should a coroner conduct an inquiry?

In NSW, fire inquiries ordinarily are conducted:

  • For industrial fires or explosions, especially those where there are public health or safety issues involved.

  • Where a fire has been deliberately lit in suspicious circumstances.

  • Where there is reason to consider that an inquiry is likely to produce more evidence than has been obtained by fire investigators. For example, an expert report or other fresh evidence may have been produced.

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

  • Where a coroner may be able to make useful recommendations relating to the public interest.

A coroner must also conduct an inquiry if directed by the State Coroner to do so or if requested to do so by the Commissioner of the NSW Fire Brigades or the Commissioner NSW Rural Fire Service.

What happens if a person dies 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 findings pursuant to s 81.

[50-280] State Coroner’s Circulars and Resources

State Coroner’s Circulars are issued on coronial matters on a regular basis. Coroners should keep abreast of developments as they are issued.

The Coroner’s Court NSW website is a good starting point at:
<www.lawlink.nsw.gov.au/CORONERS>.

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

For information on death-related grief for the community and professionals: see GriefLink at <www.grieflink.asn.au>.

Material on depression and suicide prevention: see Beyondblue and the Black Dog Institute at: <www.beyondblue.org.au> and <www.blackdoginstitute.org.au>.