Coronial Inquests and Inquiries

Summary

The presentation provides a practical introduction to coronial inquests and inquiries, mainly for practitioners representing interested parties. It covers the jurisdiction’s purpose and unusual procedures, evidence and procedural fairness, and ways to manage reputational risk for witnesses and organizations.

1. Purpose and character of the coronial jurisdiction

• Coronial proceedings investigate deaths and, in some circumstances, fires or explosions. The process may involve people affected by deeply traumatic events, so practitioners must balance their client’s interests with the human context.
• The jurisdiction is a fact-finding process, not ordinary litigation. It has both adversarial and inquisitorial features:
  • A coroner hears evidence and may permit questioning of witnesses, but does not determine the parties’ rights or make findings of criminal or civil liability.
  • Proceedings may nevertheless become contentious, especially when related civil claims or criminal proceedings are underway.
• Findings about the cause and circumstances of an event can involve factual questions of responsibility, even though the coroner is not meant to apportion legal blame.
• Coroners may make recommendations intended to improve policy, systems, or public safety.

2. Key statutory powers and procedures discussed

The presenter’s overview of the New South Wales legislation highlighted these provisions:

• Sections 21 and 81: Inquests and written findings concerning deaths, including findings about manner and cause.
• Section 27: Circumstances in which an inquest is mandatory.
• Section 30: Inquiries into fires or explosions, focused on cause and origin.
• Section 49: The coroner’s broad power to give directions and manage proceedings, subject to the Act and practice notes.
• Section 58: The coroner is not bound by the rules of evidence and procedure that apply in ordinary court proceedings.
• Section 78: A complex provision relevant when criminal charges or possible indictable offences intersect with an inquiry.
• Section 82: Power to make recommendations.
• Section 85: Power for the Supreme Court to quash an inquest or inquiry and order a new one.
• Section 95: A further statutory avenue discussed in relation to challenging coronial outcomes. The presenter characterized this type of relief as exceptional and potentially disruptive.

3. How a coronial matter is managed

The presenters emphasized the following practical steps:

• Use the directions hearing effectively. It is generally the point to raise procedural issues, settle or refine the issues list, seek leave to appear, and establish a timetable for evidence.
• Pay close attention to the issues list. It defines the matters relevant to the inquiry, but may remain in draft or change during the process. The coroner controls the scope and can amend the list.
• Understand the role of counsel assisting. Counsel assisting—or, in many matters, a police advocate—usually:
  • Opens the case and advises on witnesses and the order of evidence.
  • Calls and examines witnesses.
  • Receives evidence on behalf of the inquiry.
  • Makes submissions about possible findings.
• Interested parties commonly have an opportunity to cross-examine, but do not have the same control over calling and presenting evidence as parties in ordinary litigation. Evidence is generally tendered through counsel assisting.
• Maintain constructive communication with counsel assisting. Their assessment of the evidence can be a useful indication of how the coroner may view a party’s position.

4. Evidence and objections

• Although coroners are not strictly bound by evidentiary rules, practitioners can encourage attention to the principles behind those rules—especially relevance, reliability, and probative value.
• Hearsay and opinion evidence may be admitted more freely than in ordinary litigation. Lay witnesses may sometimes be asked for opinions outside their expertise.
• Objections should be used selectively:
  • Technical objections may have limited success.
  • Objections framed around relevance, competence, or reliability may be more effective.
  • An objection can still be useful even if it is not upheld, because it flags concerns that can be developed in final submissions.
• Consider whether expert evidence is required rather than allowing non-experts to address technical, medical, or psychological questions.
• A late document or statement is not necessarily unusual. If it should be considered, raise it with counsel assisting promptly and explain its relevance. If necessary, ask the coroner directly to consider admitting or addressing it.

5. Procedural fairness and reputational risk

Tim Hackett focused on protecting witnesses and clients from adverse findings or referrals.

• Possible adverse outcomes range from criticism in the findings to disciplinary or other investigative referrals. In serious cases, a referral for criminal investigation may occur.
• Procedural fairness generally requires:
  • A person with sufficient interest to be heard.
  • Notice of allegations or proposed criticism.
  • A meaningful opportunity to test relevant evidence, including by examining witnesses.
  • An impartial decision-maker.
• Practitioners should seek notice of proposed criticism and ensure it is grounded in evidence. If another party intends to seek criticism or a referral, the relevant proposition should generally be put to the affected witness before submissions are made.
• The issues list may be negotiable. Where appropriate, practitioners can seek to narrow language that introduces standards-of-care or conduct questions beyond the inquiry’s proper focus.
• Keep the distinction between the inquiry’s focus on manner and cause and broader judgments about standards or responsibility in view. The presenters noted that this distinction can become blurred in practice.
• Avoid hindsight-based criticism of a person’s conduct where the question concerns what they could reasonably have known or done at the time. Hindsight may be relevant to recommendations and lessons learned, but should not automatically govern assessments of past conduct.

6. Preparing and supporting witnesses

The presenters stressed that careful preparation is essential because opportunities to correct problems after the hearing may be limited.

Start early:

• Confer with witnesses well before they give evidence.
• Identify relevant documents and obtain statements in advance.
• Check for documents or information that might emerge late.

Other practical steps include:

• Give witnesses access to relevant material, including the evidence they may be asked about. If the inquiry is using audiovisual links or displaying documents, check that the arrangements work.
• Where possible, let witnesses become familiar with the hearing room and the style of questioning they may face.
• Consider more than one preparation conference if circumstances allow, while avoiding surprises in the witness box.
• Encourage candour and straightforwardness. A witness who acknowledges a genuine error or a fair concession may appear more credible than one who is overly defensive.
• Do not conceal relevant material. A lack of candour may increase the risk of criticism.
• Where appropriate, show insight and explain lessons learned, while distinguishing genuine improvements from policies that exist only on paper.

7. Section 61 certificates

• Section 61 provides a certificate relating to a witness’s objection to giving evidence that may tend to incriminate them or expose them to a civil penalty, including possible disciplinary consequences.
• The protection has limits: it concerns the witness’s own evidence and does not prevent criticism based on expert evidence or what other witnesses say.
• Consider carefully whether applying for a certificate is useful. It may provide some protection, but may also draw attention to an issue, particularly if other evidence could support the same criticism.

8. Organizational recommendations

• Organizations may be able to address proposed recommendations by demonstrating that improvements are already underway.
• Evidence of implementation matters, not just the existence of a policy or protocol. Useful material may include training records, implementation stages, and the proportion of staff trained.
• Seek early notice of proposed recommendations and enough time to obtain instructions and prepare a detailed response.

9. Overall lessons

The central practical lessons were to prepare early, understand the coroner’s control of the process, focus objections on meaningful issues, and protect procedural fairness without treating the inquiry as ordinary adversarial litigation. For witnesses and organizations, candour, preparation, and evidence of genuine learning or improvement can help manage the risk of criticism and referrals.

Speakers and sources mentioned

Speakers

• Richard — welcomed attendees and introduced the session.
• Anan Swipers — name as rendered in the subtitles; presented the overview of the jurisdiction, procedure, evidence, and statutory framework.
• Tim Hackett — discussed reputational risk, procedural fairness, and witness preparation.

Legal sources and authorities

• The New South Wales Coroners Act, including sections 21, 27, 30, 49, 58, 61, 78, 81, 82, 85, and 95.
• The coronial practice note, including its discussion of procedure and directions hearings.
• A decision of Justice Hamill in the New South Wales Supreme Court, cited for describing the coroner’s court as a statutory court.
• A decision of Justice Hughes in South Australia, cited for describing an inquest as a fact-finding process.
• Mr Neill, associated in the presentation with a statement by Justice Ipp about the hybrid character of coronial proceedings.
• Annetts and McCann, cited in relation to procedural fairness.
• Ex parte Thompson, cited in connection with the fact-finding nature of an inquiry.
• Saracen Jones, cited in relation to common sense and differing assessments of evidence.
• Crown v Duggan, concerning the ACT bushfires, cited in relation to evidence and impartiality.
• Minister v Ruddock (ex parte applicant), cited in relation to the application of the Brown v Dunn rule.
• Brown v Dunn, discussed in relation to putting allegations to witnesses.
• South Australian Coroners Act, section 27, cited as an example of a statutory appeal provision.
• A 1933 High Court decision was mentioned concerning the coronial focus on substantial justice; the case name was not clear in the subtitles.
• A textbook on coronial law was cited for the application of Ruddock principles in coronial proceedings.