Counsel assisting the coroner

A coroner can be assisted during inquests by a ‘counsel assisting’. The counsel assisting the coroner is an independent government or private legal practitioner, who is appointed to help the coroner to organise and run the inquest. Unlike the coroners’ associates (who are often police officers and deal more with the investigation and the practical aspects of the inquest) a counsel assisting’s role is mostly legal. They examine the evidence and guide the coroner through it, aiding the coroner’s deliberations. Counsel assisting may advise upon and conduct further investigation as necessary, conduct research into relevant areas of the law or advise the coroner on appropriate recommendations. The coroner will seek further direction from counsel assisting if they require more information on an issue. The role of counsel assisting is not at an end until the findings have been handed down.

Counsel assisting may speak with families, friends and witnesses before the inquest to help them to understand the process and find out if there is anything else that they wish to raise. It is important that they develop good communication with families through the inquest. Counsel assisting has their pivotal role in the courtroom, in making submissions, calling witnesses and asking questions on the coroner’s behalf. They may also ask questions on behalf of the families and friends of the deceased person if they are not represented, or if those persons feel uncomfortable speaking in court. It is expected that the counsel assisting will provide information and perform their duties in a fair, unbiased and impartial manner.

In less complex matters, a coroner’s associate may act in the role of counsel assisting.

It is important to note that it is not the counsel assisting’s role to “prove” anything or to represent the deceased person or their families; the role is completely independent. It is to assist the coroner by ensuring that the relevant evidence is put before the Court in an efficient, clear and logical manner in order that the coroner can make the requisite determinations under section 28 of the Act.

The Coroners Act 1995 (Tas) does not detail the duties and powers of counsel assisting. It does state that a coroner may be assisted by counsel or such other persons as the coroner determines, and may request that the Director of Public Prosecutions provide counsel to assist the coroner at inquest (ss 53(2) & 53(3)).

The functions of counsel assisting include:

• the active pursuit of the truth and the attainment of justice (R v Doogan [2005] ACTSC 74 per Higgins CJ, Crispin and Bennett JJ at [162])
• reviewing the investigation conducted by police
• advising the coroner of any further investigation necessary and taking steps to ensure those avenues are investigated
• identifying the issues and scope of the inquest
• identifying persons of interest and relevant witnesses
• appearing at the case management conferences
• conferring with interested parties regarding the scope of the inquest, disclosure of documents and the exhibit list
• identifying possibilities or tentative conclusions relating to matters in s 28 of the Act
• testing evidence with a view to confirming or discounting those hypotheses
• assisting the coroner with reviewing evidence by providing clarification and discussion of the evidence for the purpose of findings and discussing any other matters arising before findings, such as new evidence.

The role of counsel assisting shares some similarities with prosecuting counsel.  Such similarities include:

• determining which witnesses are to be called and determining the order in which they are to be called, although ultimately which witnesses are to be called is determined by the coroner
• leading witnesses in a manner that enables them to provide their narrative of events
• making final submissions to the coroner regarding the conclusions open from the evidence, the quality of the evidence and the findings that are open, including the ability to assertively submit for a particular conclusion
• the overriding duty of fairness and the goal of achieving justice (R v Doogan [2005] ACTSC 74 per Higgins CJ, Crispin and Bennett JJ at [162]).

However, there are some significant differences between counsel assisting and prosecuting counsel, which include:

• The role of counsel assisting is not to prove a case, but rather to investigate the circumstances of death, and provide findings that can be made in respect of the death.
• The role of counsel assisting may involve a greater deal of flexibility in the approach to the evidence, as the matters in issue may change, and new evidence may become available at any stage of the inquest.
• Unlike in adversarial litigation, counsel assisting meet and have discussions with the coroner throughout the course of the investigation and inquest (Re Kotan Holdings Pty Ltd; Big Rock Pty Ltd and Colin Saul Rockman v Trade Practices Commission [1991] FCA 273 per French J at [8]).
• Counsel assisting cannot make submissions to the effect that a person has committed a crime (R v Tennent; Ex parte Jager [2000] TASSC 64 per Cox CJ at [7] and [12]).
• Proof of facts is on the balance of probabilities.
• The Evidence Act 2001 does not bind counsel assisting, as the rules of evidence do not apply to coronial inquests (s 51 of the Act).

The role of counsel assisting throughout the coronial process

Ideally, counsel assisting is appointed at an early stage.  Although exceptions occur, coroners are keen to commence working with counsel assisting when investigations on the coroner’s file are completed but the inquest date has not yet been set.  

A typical inquest will involve the following stages:

Stage 1 - Appointment

The clerk of the Coronial Division will formally notify counsel that they have been appointed as counsel assisting, and they will be contacted by the coroner or coroners’ associate regarding arranging an initial meeting and allocating tasks.  The clerk of the Division may provide counsel with contact emails and details.

In the event of a delay in being contacted, it is appropriate for counsel to contact the coroner or coroners’ associate to enquire as to the progress of the investigation, whether a copy of the file is available, and the current tasks required of counsel.

Once counsel assisting has their first contact with the coroner the tasks they may be required to undertake will include, but are not limited to:

• reviewing the existing evidence
• meeting with the coroner and coroners’ associate for preliminary discussions regarding:
  • the issues arising, the scope of the inquest and “live” issues of the evidence
  • whether any further investigation is necessary
  • identifying the interested persons /organisations
  • establishing the preferred methods of communication between counsel assisting, the coroner and coroners’ associate, and also clarifying how the coroner wishes to be addressed in informal and formal settings
  • allocating the general division of tasks between counsel and other staff within the coroners’ office
• preparing and obtaining a ‘to-do’ list, which may include the matters listed above.

Given the relationship between counsel assisting and the coroner is a unique one, differing from the usual “arm’s length” relationship between the judiciary and counsel, it can be a large adjustment for counsel assisting to feel comfortable communicating directly with the coroner and working closely together.  Counsel assisting should not be afraid to contact the coroner directly, or to contact them for guidance between arranged meetings.

Whilst counsel assist the coroner, they do not act for the coroner.  They are independent, and bring their own legal mind to bear on the proceedings.  

Stage 2 - Preparation

At this stage, the role of counsel assisting will involve:

• a second meeting with coroner
• preparation of a list of issues in relation to the scope of the inquest, which is prepared in consultation with the coroner
• identifying which witnesses should be called
• preparing a draft timetable and estimated hearing time
• preparing the exhibit list (to the extent possible) and ensuring that exhibits are in order
• determining whether any further affidavit or documentary evidence is required
• ensuring that interested parties have been formally notified in writing of the general nature of the issues to be addressed at inquest (and identifying the nature of evidence that may be subject to adverse comment), and invited to provide email addresses for the delivery of materials and correspondence
• ensuring that documentary evidence has been disclosed to interested parties by staff within the coroners’ office
• arranging a case management conference (ideally this will take place within four weeks from the time the interested parties are notified)
• giving notice of the case management conference to interested parties - this notice may be given orally or in writing (rule 22)
• conducting a scene visit with the coroner if appropriate.

Stage 3 - Case Management Conference

For further information regarding the case management conference, refer to Key Elements in the Process: Case management conferences, and rule 22.  

Case management conferences can be informal, but in practice they are often held in a traditional court environment as they are an important part of the integrity of the inquest process.

The role of counsel assisting at this stage of the inquest includes the following:

• ensuring that administrative staff or coroners’ associates have arranged a court room and facilities for the date of the conference and that a court clerk is available
• appearing at the case management conference and outlining the issues to be canvassed at inquest as well as the witnesses to be called and estimated hearing time
• ensuring that all parties have relevant documents.

At the end of the conference or conferences (depending on how many are required), there should be agreement as to the scope of the inquest, witnesses to be called, suitable dates for the inquest or the ability to list on a date known to be available, and an estimate of hearing time.

Stage 4 - Pre Inquest

Prior to the inquest, counsel assisting should finalise the witness list and prepare an inquest plan. The coroners’ associate will issue summonses for the witnesses, however counsel assisting should confirm that this has occurred.  Where possible, witnesses should be advised of a realistic time to appear to avoid waiting or delays.

Other tasks of counsel assisting prior to inquest include:

• considering whether a second or subsequent case management conference is required
• preparing an opening address:
  • the purpose of the address is to outline the scope of the inquest and the evidence to be adduced
  • the address should be as detailed and clear as possible, and be focussed on the issues, without making conclusions
  • counsel assisting can seek review or input from the coroner if appropriate
• ensuring the exhibit list is in order:  
  • the exhibits need not be tendered in the same order as the material appears in the investigation file, however generally the first exhibits are always the same in each inquest, being the Report of Death, affidavit of identification, affidavit of life extinct, affidavit of the forensic pathologist, post mortem report, affidavit of the toxicologist and toxicology report
• ensuring that all questions and requests from other parties are resolved and dealt with, and that all parties have relevant documents.

Stage 5 - Inquest

During the inquest, counsel assisting perform the following tasks:

• make an opening address
• call and question witnesses. The manner in which witnesses are questioned can vary, and can be quite different to examination-in-chief in adversarial litigation.  A technique that is often employed by counsel assisting it is to have the witness read their affidavit or statement into evidence, rather than just be asked questions.  The rationale for this is to ensure that the content of the statement is publicly ventilated and that the witness’ memory is refreshed and the witness has the opportunity to change any evidence
• in matters where a witness’ statement is an electronically recorded interview (that could be of some extended duration), it may be appropriate, with the consent of all parties and the coroner, for the witness to either:
  • have the interview played back to them, and for them to agree that it was an accurate recording, or
  • to agree that they were interviewed and answered all questions truthfully. This second course is often the most efficient
• where a party is not represented and there is evidence that is likely to lead to an adverse finding against that party, the rules of natural justice require that counsel assisting should ensure that when leading evidence they explore and test the evidence
• speak with the deceased person’s family members.   Often the family members are not represented, in which case counsel assisting should enquire whether there are any questions they have for each witness, and ask the questions for them if they are not comfortable asking questions themselves
• at the conclusion of the evidence, counsel assisting should enquire whether the coroner requires written or oral submissions.  If written submissions are required, counsel assisting should ask the coroner to set a timetable for when they need to be filed and a date for the parties to appear and speak to their submissions.

In relation to the submissions, again it is appropriate that counsel assisting confer with the family members of the deceased (if they are unrepresented) to confirm whether there is anything that they wish to say in the submissions.

Counsel assisting should ensure that any submissions regarding recomendations urged are clear and sensible.

Whilst the scope of the inquest and the issues to be canvassed are set well in advance of the inquest, counsel assisting should be prepared for other evidence to come out during the course of the inquest, such as new witnesses coming forward or witnesses changing their accounts.  A flexible approach is necessary.

Stage 6 - Findings

Prior to delivery of the findings, counsel assisting may be required to assist the coroner by providing summaries of evidence or conducting research.