Findings, comments and recommendations
What are coroners’ findings?
“Findings” are the facts that the coroner has found upon the evidence. They are contained in a document created by the coroner at the end of an investigation or inquest. Findings produced after an investigation only are called ‘findings without inquest’, also known as ‘in chambers’ findings. ‘Findings with inquest’ usually take longer to write and are more detailed, as the coroner has more information, including significant oral testimony, to consider. The legislation specifies which facts a coroner must find, if possible, in the case of a death, fire or explosion.
In the case of a death, the coroner must find if possible (s 28 (1)(a-e)):
- the identity of the deceased; and
- how death occurred; and
- the cause of death; and
- when and where death occurred; and
- the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1999.
In the case of a suspected death (the coroner may also investigate suspected deaths due to the definition of death in s 3 of the Act), the coroner is also required to make a finding as to whether the person has, in fact, died.
In the case of a fire or explosion, the coroner must find if possible (s 45(1)(a-c)):
- the cause and origin of the fire or explosion; and
- the circumstances in which the fire or explosion occurred; and
- the identity of any person who contributed to the cause of the fire or explosion.
Findings may also include comments and recommendations made by the coroner. The aim of coroners’ comments and recommendations is to improve public health and safety, or to further the administration of justice. All comments and recommendations must be connected to the death that the coroner is investigating. Coroners’ findings must not include any statement that a person is or may be guilty of an offence (ss 28(4) & 45(3)). It is also not the coroner’s role to attribute civil liability.
In finding facts, coroners identify any contributing factors and do not shrink from clearly stating those factors and the manner in which they caused or contributed to death. There is a distinct difference between expressing that a person’s actions directly caused the death of another person, and stating that there has been a murder. Factors such as lawful self-defence may play a part; therefore, a finding that a person factually caused death is not the same as a finding that an offence has been committed. Coroners only determine facts, and they do not touch on the legal consequences that may flow from those facts. Such matters are left up to other courts to decide. For a judicial statement on the reasons for this approach refer to Attorney General (NSW) v Maksimovich (1985) 4 NSWLR 300 at 314.
If a coroner is of the belief that an indictable offence may have been committed in relation to a death, fire or explosion that they have investigated, they must refer the matter to the Attorney-General (ss 30 & 47). It is then up to the Attorney-General / Director of Public Prosecutions to decide what charges will be laid, if any. The coroner has no influence over this decision.
For a coronial finding which discusses the ambit and nature of the prohibition against coroners making statements that an offence has occurred, refer to paragraphs 194 – 196 of Butterworth, Lucille 2016 TASCD 96.
Principles such as procedural fairness and hindsight (as to recommendations) guide coroners in their findings. A coroner must apply procedural fairness and give any party who may be the subject of adverse findings the opportunity to respond to the evidence which forms the basis of those findings.
In the case of a death, a copy of the findings is always sent to the senior next of kin as soon as it is available (rule 25). A person with sufficient interest in the matter may apply to the Chief Magistrate to have the findings amended, or apply to the Supreme Court to have any or all of the findings declared void.
For more information, refer to Key Elements in the Process: Applications.
All findings that relate to an inquest are published on the Tasmanian Magistrates Court web site in the coroner’s court section, under Coronial Findings. Sometimes coroners will choose to publish findings that relate to an investigation that did not proceed to inquest.
What are coroners’ comments?
Coroners’ findings contain statements of fact but they can also contain comments and recommendations. A coroner can make comments on any matter connected with the death, fire or explosion (ss 28(3) & 45(2)). Generally, these comments are focussed on the enhancement of public health or safety or the administration of justice. A coroner may use their comments to commend a practice that has the potential to save lives, or to condemn a practice that endangers them. Coroners’ comments can draw attention to areas that may be under-regulated and areas in which regulations are not applied or not widely known.
For information on the meaning of ‘connected with’, refer to Key Elements in the Process: Inquests – Causation, scope and relevance.
What are coroners’ recommendations?
Coronial recommendations have the potential to be a powerful force for the improvement of public health and safety. Investigating deaths is the vital primary function of the coronial process; however, recommendations allow the coroner to transcend this purpose and to actively work towards preventing similar deaths. The legislation states that if it is appropriate, a coroner mustmake recommendations with respect to ways of preventing further deaths (Act s 28(2)). The coroner also has the power to make recommendations on any other matter they consider appropriate. The recommendations can be directed towards any person or organisation. Examples of the organisations subject to recommendations are: hospitals, regulatory bodies, private companies and government departments.
Examples of recommendations made by coroners to prevent deaths include:
- enhancement of community education on sudden infant deaths and the dangers of co-sleeping
- promotion of driver safety
- the compulsory use of life jackets
- a redesign of Risdon Prison to reduce hanging points (amongst other things)
- changing medication dispensing regimes in hospitals
- a dedicated mental health outreach and out-patient services for at-risk youth
- strengthening pool fencing regulations (and increasing public awareness as to the application of these regulations to inflatable pools).
Unlike some other jurisdictions, there are no legislative requirements in Tasmania for government entities to respond to, or actively implement, coronial recommendations. In 2009, the Premier of New South Wales issued a Memorandum to ensure a consistent process across the New South Wales government to respond to coronial recommendations. In Tasmania, we rely on the good will and energy of individual government entities and private organisations to take on coronial recommendations and implement them (or the closest, most practicable alternative). In this way, we have seen significant reforms that have saved lives.
Recommendations aim to be positive and practical. Often interested persons will have valuable insight into the organisational structures and realities in which the incident occurred. Anyone with this knowledge has the potential to enhance and assist the coroner’s preventative role by providing advice on what the most practical and effective changes may be. Coroners welcome input into potential recommendations from interested persons.
The best recommendations in matters involving systemic errors:
- prevent: other similar deaths. How can mistakes that may have contributed to the death be prevented?
- anticipate and compensate: if mistakes are not preventable, how can we ensure that they do not have tragic consequences?
- detect and correct: if mistakes are not preventable, how can we ensure that they are detected and remedied as soon as possible?
- are likely to be implemented: as they fit with current practice. They may be cost effective, and clarify and simplify procedures.
In the particular case of a person who dies in government care or custody, recommendations are important. The coroner may make comments and recommendations regarding improvements to any systemic issues that would enhance safety in the future. Independent and public scrutiny by the coroner of government practice and procedures encourages continual improvement in those procedures. This enhances accountability, transparency and responsible government. The making of recommendations directed to government practice and procedures creates a strong incentive to prevent future tragedies and related public criticism.
For more information on the requirement for governments to respond to coronial recommendations in other states, for example SA, Vic & ACT, refer to: Coroners Act 2003 (SA) s 25(5), Coroners Act 1997 (ACT) s 57(5) & Coroners Act 2008 (Vic) s 72 and What happens to coroners' recommendations for improving public health and safety? Organisational responses under a mandatory response regime in Victoria, Australia, Georgina Sutherland, Celia Kemp, Lyndal Bugeja, Graham Sewell, Jane Pirkis and David M Studdert, BMC public health 14(732) 2014.
Best practice in responding to coronial recommendations
- Although there is no legislative requirement to respond to or enact coronial recommendations in Tasmania, there are many good reasons to do so.
- Recommendations are aimed at saving lives and offer an independent and informed perspective on changes that can be made to achieve this end.
- For government organisations: positive action that results from recommendations enhances accountability, responsibility and public trust in government.
- If a coroner makes recommendations and no changes result, similar deaths may occur in the future and adverse findings in those circumstances may draw attention to that fact.
- If an organisation is the subject of coronial recommendations, the best practice for representatives of the organisation in responding to those recommendations may be as follows.
- Acknowledge receipt of the recommendations and refer them to the relevant officer or department in a timely manner.
- The officer responsible should analyse and cost the recommendations; including the costs of any proposed alternatives. Alternatives should only be considered where they are able to achieve the outcome intended by the recommendation, and where there is a logical reason to implement an alternative such as practicality, prohibitive cost or increased benefit.
- The officer responsible should provide a report on the recommendations, which is referred to the executive or decision-making arm of the organisation.
- It may be that, after considering all aspects of the recommendation, it is not feasible in terms of cost or practicality to implement the recommendation.
- Strategies should be put in place to implement the recommendations or the proposed alternatives.
- Consider forwarding correspondence to the coroners’ office and the Attorney-General outlining the measures taken to implement the recommendations, and the measures that are intended to be taken in the future. If alternative measures are employed, give details and the reasons for implementing those measures.
Publication of findings
There is nothing in the legislation that specifies the manner in which findings are to be published or which requires their publication. In the case of a death, the senior next of kin will be given a copy of the findings (rule 25) and others may apply to the coroner’s court to receive a copy (refer to Key Elements in the Process: How to access documents).
Findings formally published by the court can be located on the Magistrates Court web site in the coroner’s court section, under Coronial Findings. All findings relating to inquests are published as they result from a public hearing involving significant issues. Findings relating to investigations without inquest may be published if there is public concern surrounding a matter, or where public health and safety is furthered by disclosure of the findings. When findings are published in this manner, the senior next of kin is notified.
When findings are published, sometimes they are ‘de-identified’. This is a technique used to protect the identity of persons referred to in the findings, in certain circumstances. Instead of the person’s name, an initial such as “K” will appear. Findings may be de-identified on the coroner’s own motion, or at the request of a family member. If you or your client wish to have findings de-identified, please contact the staff at the coroner’s court at any time prior to the findings being published to make your request (as early as possible in the proceedings is best).
Waller’s has a good short section on Findings, Comments and Recommendations from I.121 (Abernethy, J., Baker, B., Dillon, H. & Roberts, H., Waller’s Coronial Law and Practice in New South Wales (LexisNexis Butterworths, 4th ed, 2010)).