Representing an interested person in a coronial matter

Representing an interested person (or organisation) in a coronial matter is a very different experience to representing a client in a criminal or civil matter. Coronial proceedings have collaborative aspects; parties are encouraged to work together to ensure that all potentially relevant information is available to the coroner. Coronial proceedings are also inquisitorial; the coroner defines the issues, directs the investigation and decides which information is relevant to the proceedings.

The focus in coronial matters is on establishing the facts required by section 28 and, in relevant cases, making comments and / or recommendations with the aim of preventing similar deaths. Through their recommendations, coroners can address any systemic issues that their investigations have uncovered. The ability to examine the system as well as the individual, to look to the future as well as at the past, makes the coronial jurisdiction unique.

The role of counsel in coronial matters is two-fold: to protect the interests of their client and to assist the coroner in their fact-finding. In order to best protect the interests of your client, it is important to be aware of the coroner’s control of proceedings. You will need to be active in advocating for the inclusion of evidence that supports your client’s position from the beginning. For practical tips on how to accomplish this, refer to the section below.

It is most important to be respectful and sensitive when dealing with parties to coronial matters. Investigations can be highly emotive. Patience, tolerance and understanding are vital.

This section contains general information on representing an interested person throughout the entire investigation process. For information specific to representing an interested person at inquest, refer to Key Elements in the Process: Representing an interested person at an inquest and Key Players in the Process: Counsel assisting the coroner.

Things to consider

What is your client’s role in the investigation? Are they the senior next of kin, an interested person or a person or organisation that may have adverse findings made against them?

• The nature of your client’s involvement in the proceedings has a strong bearing on their rights and responsibilities.
• Check the corresponding sections of the Handbook (senior next of kin, interested persons etc.) for relevant legislation and further reading.
• For more information on potential adverse comments and findings, refer to Key Elements in the Process: Representing an interested person at an inquest – Potential adverse comments and findings.

Do you have copies of all documents that may be relevant to your client’s interests?

• Make sure you write to the Coronial Division early in the proceedings and apply for copies of all relevant documents.
• It can be helpful to ask for a list of the documents on the file to ensure that you are aware of all the material the coroner will be considering to enable you to make appropriate applications.
• As the matter progresses (and particularly if an inquest is foreshadowed) it is advised that you check that no further relevant documents have been received by the coroner.

Is all the documentary and physical evidence you wish the coroner to consider available to them?

• You are always able to forward any additional information to the coroners’ office.
• To do this, simply attach a cover letter to the relevant document and send it to the coroners’ office.
• Please include in your correspondence your client’s role in the investigation and why the information will assist the coroner in their fact-finding.
• If the evidence is physical, call the coroners’ office and discuss it with the associates, and arrange a time to bring it in to the office (this ensures that the coroners’ associates are aware of what the article is and why you wish the coroner to consider it).

Have you talked through the major points of the investigation with your client? Have you prepared them (insofar as is possible) for the findings?

• This enables you to make submissions promoting your client’s position in relation to potential findings.
• You may do this in writing, or verbally if there is an inquest.

If you are representing a government employee, public authority or other body it is recommended you advise the coroners’ office (before the findings are handed down) of any of the following that has occurred:

• 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 implemented in the future, to mitigate against any risks discovered in the course of the investigation
• 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 investigation.

Ask for any information concerning the recommendations that the coroner may be considering and discuss these with your client. Your client will have valuable information on the organisational structures and realities in which the incident occurred. Your client therefore has the potential to enhance and assist the coroners’ preventative role by providing advice 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 is appropriate for parties to write to the coroner in order to offer potential recommendations in the interests of preventing similar deaths, fires or explosions. Please include in your correspondence why it is submitted or suggested that the recommendation should be accepted, and will work.

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 investigation process. Even professionals may become distressed during the course of an investigation, particularly if their actions are subject to close scrutiny.
• There are a number of professional bodies who can offer assistance listed in A Guide for Families and Friends: Coping with Grief and A Guide for Families and Friends: Who can help?. There may also be ‘in house’ counselling services provided if 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 diverse 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.

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, 4^th 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 and Freckelton, I., & Ranson, D., Death Investigation and the Coroner’s Inquest (Oxford University Press, 2006) – Chapter 16, Advocacy.