Representing an interested person at an inquest
Please refer to the introduction to the section Key Elements in the Process: Representing an interested person in a coronial matter for a summary of the general approach to, and unique aspects of, advocacy in the coronial jurisdiction.
Things to consider before the inquest
- Has your client been recognised by the coroner as an ‘interested person’ in the proceedings? You and your client will have different rights depending on their status in the investigation. There are limits to the right to be involved in the proceedings imposed by the coroner on a case-by-case basis and considerations include whether you represent an interested person. A person who has a ‘sufficient interest’ in a particular document or aspect of the investigation is not necessarily the same as an ‘interested person’ under section 52 for the inquest.
- Which issues does your client want examined in detail?
- There may be many potential issues, some your client will want vigorously pursued, others they will want to address only cursorily if possible.
- It is advisable to have a clear idea of which issues are most important to your client and the approach they want you to employ with each (before any case management conference if possible).
- It is important to provide your client with advice as to which issues should be pursued as relating to how death occurred or possible recommendations.
- The words of Chester Porter QC (an eminent Australian criminal defence barrister) are worth considering, ‘Is it really desired that a particular subject matter should be opened? Many good advocates say very little at inquiries.’
- Ascertain the issues that the coroner has deemed relevant. These may be discussed at any case management conference and you will have the opportunity to make submissions as to the scope of the inquest. The scope of the inquest will guide the evidence admitted and the direction that the inquest is expected to take.
- Are all the witnesses required to explore those issues proposed to be called? You are able to call witnesses if your client is an interested person (s 52(4)), however you should inform the coroner at the earliest opportunity if you intend to do so. Whether your proposed witness is permitted to give evidence at inquest is ultimately the coroner’s decision.
- Will all the documentary and physical evidence you require to examine those issues be before the court? Once you have assessed the material on the coronial record, you may need to source additional statements or reports to support your client’s position. You should advise the coroners’ associates of any evidence you seek to have admitted at inquest.
- Do you have copies of all documents that may invite adverse findings against your client? i.e. have you applied for access to all relevant documents?
- For information on how to make an application, refer to Key Elements in the Process: How to access documents.
- Is there any additional evidence that you consider would assist your client and the coroner?
- You are able to write to the coroners’ associates before the inquest to provide any documentary evidence, physical evidence, or the names of any witnesses that you wish to have before the court. This approach minimises the chance of delays occurring as a result of the coroner being presented with new evidence to consider during the inquest.
- Please provide the reasons in your correspondence why this evidence will assist the coroner in fact-finding.
- You may call witnesses yourself (s 52 (4)) or request that the coroner do so under their own authority. Only the coroner has the power to summons witnesses and sanction them for non-compliance so it may be preferred to make a request to the coroner and ask that they use this power.
- Note that the coroner may not permit you to call a witness if they are not considered to be able to provide relevant evidence.
- You may tender evidence at the inquest. The coroner will then decide if the evidence is relevant, and admit it if appropriate.
- Will your client seek a restriction on the publication of the report of an inquest or a report of any part of the proceedings, or of any evidence given?
- This includes a request to de-identify the deceased person or any other person.
- The factors that are relevant to the coroner’s decision are specified in section 57.
- Do you need to request a case management conference or further case management conference to clarify / arrange any of the matters mentioned previously, before the inquest begins?
- For matters that can be raised (and may be important to consider) at a case management conference, please refer to Key Elements in the Process: Case management conferences.
- Is your client aware of their rights, privileges and protection in relation to evidence given before the coroner?
- Note the Act ss 29(2), 46(2) & 54.
- Is your client aware of the risks inherent in giving evidence in coronial proceedings, where the rules of evidence do not apply?
- These include risks such as forensic disadvantage in any related future proceedings.
Does your client require referral to counselling or support services?
- It is a good idea to keep this issue in the back of your mind during the inquest process. Even professionals may become distressed during the course of an inquest, particularly if their actions are subject to close scrutiny.
- There are a number of professional bodies who can offer assistance listed in the A Guide for Families and Friends: Coping with Grief and A Guide for Families and Friends: Who can help? sections of the Handbook. There may also be ‘in house’ counselling services provided when your client is involved in the proceedings through events that occurred at their place of work.
Does your client have complex communication needs?
- Classes of people who may have complex communication needs include children, Aboriginal people, people from non-English speaking backgrounds, people with mental health issues and people with disability.
- If they do, you can access special assistance to ensure that the court process accommodates their needs.
- For more information on the services available to assist those with complex communication needs or special needs generally, refer to Key Players in the Process: Witnesses and A Guide for Families and Friends: Who can help? – If you need extra assistance.
Potential adverse comments and findings
- Procedural fairness requires that a person who may face adverse comments be provided with the opportunity to be heard on those matters (Annetts and Anor v McCann and Ors. (1990) 170 CLR 596). In order to be sufficiently prepared to do this, such a person is entitled to be given reasonable access to coronial documents upon application (refer to Key Elements in the Process: How to access documents).
- It is important to ensure your client is aware of their rights, privileges and protection in relation to evidence given before the coroner, particularly that found in section 54 of the Act:
- s 54: A statement or disclosure made by any witness in the course of giving evidence before a coroner at an inquest is not admissible in evidence against that witness in any civil or criminal proceeding in any court other than a prosecution for perjury in the giving of that evidence
- also note ss 29(2) & 46(2).
- Ensure that your client is aware of the risks inherent in giving evidence in coronial proceedings, where the rules of evidence do not apply (refer to the related section, ‘The privilege against self-incrimination’).
- During an inquest, an interested person who faces potential adverse comment can question witnesses in order to defend their position or assert the contrary.
- If your client is to be called as a witness, you may request that they be called last so as to have the opportunity to hear all of the evidence which may be led against them prior to giving evidence.
- You are able to lead your client’s evidence, rather than leaving it to counsel assisting.
- There will also be the opportunity in making closing submissions to address any areas of potential adverse comment. If you are representing a government employee, public authority or other organisation it is recommended that you address the following in your submissions:
- any relevant changes to procedure that have been implemented after the death, fire or explosion occurred
- any practical measures that the organisation is currently implementing, or that are due to be rolled out in the future, to mitigate against any risks discovered in the course of the inquest
- any internal inquiries or investigations that have occurred which aim to establish protocols which will mitigate against any risks discovered in the course of the inquest
- if you are able to anticipate the type of recommendations that the coroner may make, you should discuss these with your client - your client will have valuable information on the organisational structures and realities in which the incident occurred
- submissions on which measures are the most achievable, practical and likely to make the biggest impact will be well received.
Expressions of remorse and regret:*
People involved in coronial proceedings are encouraged to make expressions of remorse and regret where appropriate.
- This is beneficial for all parties, as acknowledgement of harm to others is frequently restorative for all people involved in the coronial process who were affected by the death. A sincere demonstration of empathy and regret – even where there is no concession of fault – can have a healing effect on those who have lost family members and on those who have, for example, lost patients.
- Apologies or expressions of remorse frequently increase satisfaction with the inquest process.
- Admissions of errors by those who make them involves taking responsibility and encourages positive behaviours.
- These expressions do not have to involve any admissions as to fault.
- At the start the inquest, you should introduce yourself and formally seek leave to appear.
- You are permitted to ask leading questions. Often a combination of leading questions and open questions is most effective, keeping in mind the benefits of leading questions (such as control of the narrative) and the benefits of open questions (such as allowing the witness to tell the story at their own pace and in their own words). Bear in mind that excessive leading questions may undermine the value of the evidence. The coroner may ask that your questions be framed to elicit the most valuable evidence for the inquest.
- The rules of evidence do not apply in the coroner’s court; as such there are no restrictions on, for example, hearsay and non-expert opinion evidence. However, a coroner is likely to exclude evidence that they consider to have negligible weight, or to be irrelevant.
- Rather than ‘is this evidence admissible?’ a coroner may ask ‘what weight is it appropriate to give this evidence?’
- Questions must be relevant to the issues at inquest – i.e. aimed at answering the questions which the coroner is bound to attempt to answer, set out in the Act s 28 (1) in the case of a death and in s 45(1) in the case of a fire or explosion.
- The coroner may request clarification on which point in s 28 (1) the evidence is directed to, i.e. they may ask how the evidence is relevant.
- s 28(1) provides that a coroner investigating a death must find, if possible –
- 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.
- Ensure you have a plan for your appearance at inquest to maximise the interests of your client. This may involve questioning witnesses to elicit the desired evidence, or not questioning a witness at all in accordance with your pre-prepared plan.
Waller’s has a useful section on representing government agencies at I.129 (Abernethy, J., Baker, B., Dillon, H. & Roberts, H., Waller’s Coronial Law and Practice in New South Wales (LexisNexis Butterworths, 4th ed, 2010)).
For other helpful information, refer to Dillon, H., Practical Advocacy: The roles of counsel in the coronial jurisdiction, (2010) 33 Australian Bar Review 293; C. Porter, Appearing at a coronial inquest: The function of an advocate, Coronial Law and Practice: Seminar Papers, College of Law, Sydney, 1993 and Freckelton, I., & Ranson, D., Death Investigation and the Coroner’s Inquest (Oxford University Press, 2006) – Chapter 16, Advocacy.
For more information on evidence in coronial proceedings, refer to Key Elements in the Process: Evidence.
The privilege against self-incrimination
The privilege against self-incrimination is a long-standing and fundamentally important common law principle.
In Petty v The Queen (1991) 173 CLR 95 at 99 the High Court said:
‘A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless.’
The High Court recently dealt with the issue of the privilege against self-incrimination in X7 v Australian Crime Commission (2013) 248 CLR 92 and Lee v The Queen (2013) 251 CLR 196. Although neither case concerned coronial inquests (and especially Tasmanian ones), and even though both judgements demonstrate the court was (at least in 2013 – 2014) fundamentally split on how the privilege against self-incrimination operates in practice, the principle that can be drawn from the judgements seems to be that the privilege continues to exist unless it is abrogated by clear statutory expression.
Section 4 the Coroners Act 1995 provides that a rule of the common law that, immediately before the commencement of the section, conferred a power or imposed duty on the coroner or a coroner’s court ceases to have effect. Thus, it is at least arguable that the common law privilege against self-incrimination did not survive the commencement of that section. This is especially so given that the Act seems to deal expressly with the issue.
Section 53 (1)(c) of the Act empowers a coroner to order a witness to answer questions. The power to compel answers of a witness is not qualified in any way.
Section 54 provides:
‘a statement or disclosure made by any witness in the course of giving evidence before a coroner at an inquest is not admissible in evidence against that witness in any civil or criminal proceedings in any court other than a prosecution for perjury in the giving of that evidence’.
The immunity with respect to secondary use of any evidence given by witness at an inquest (except with respect to a prosecution for perjury against that witness) is complete, at least with respect to criminal or civil proceedings. Whether that immunity also extends to use in administrative tribunals, commissions or the like is uncertain. The section is however silent with respect to derivative use generally.
Conclusion: the issue of the extent to which the privilege against self-incrimination continues to exist under the Coroners Act 1995 in Tasmania has not been settled.
For further reading on this subject, refer to Ian Freckelton QC, The Privilege Against Self-Incrimination in Coroners’ Inquests, (2015) 11 Journal of Law and Medicine 491; Baff v New South Wales Commissioner of Police  NSWSC 1205; R v Slaney (1832) 5 C & P 213 and Correll v Attorney General of NSW  NSWSC 1385.
- Despite the broad power to ‘make submissions’ given to legal representatives (and interested persons) in the legislation, it is generally expected that counsel will limit their submissions to these discrete areas:
- matters relevant to the interests of their own client, including addressing potential adverse comments against their client
- if representing the families and friends of the deceased person, this may include matters relevant to the interests of the deceased person.
- The coroner, if appropriate, may provide latitude to family members and friends of the deceased person who are appearing in person (or are represented) in final submissions.
- Interested persons at inquests have the potential to enhance and assist the coroner’s preventative role. It is appropriate for parties to offer potential recommendations to the coroner in the interests of preventing similar deaths, fires or explosions.
- No coroner can be an expert in every field. If you represent an interested person or an organisation which may have recommendations directed to them, your client may in fact be in the best position to advise on what the most practical and effective changes may be. Recommendations are not an end in themselves; the best recommendations are practical, effective and likely to be implemented.
- It was held in R v Tennant; Ex Parte Jager  TASSC 64 that it is not appropriate for any party to make submissions on whether a matter should be referred to the Attorney-General for the possible laying of criminal charges.
For a discussion of the limitation on interested person’s rights to make submissions under the Coroners Act 1995 (Tas) refer to R v Tennant; Ex Parte Jager  TASSC 64.
*Dillon, H. & Hadley, M., The Australasian Coroner’s Manual, (The Federation Press, 2015).