Coroners in Australia
Table of Contents
Finding out why a person has died, described in modern times as finding the ‘manner and cause’ of death especially where the death may have been caused by another, has been the role of coroners from at least since the thirteenth-century. Coroners have used juries since that time. In the last 100 years the coroner’s role has been secondary to that of the criminal legal system and only developed very slowly under the supervision of indolent governments. Adjudication of disputes between wealthy parties and the punitive application of criminal laws has taken precedence because of the prioritisation by governments of these activities over the coronial system.
Of particular significance in the last fifty years has been the growing relevance of coronial recommendations and the role they can play in death prevention. Governments have found this role particularly uncomfortable because it can expose obvious failures and require reform of systems.
Adoption of Anglo-Saxon Death Investigation Methods
To place the coronial system as it currently exists in Australia in context it is necessary to consider the history of the office of coroner. The uncertainty of its origin is described in Halsbury’s Laws of England as follows:
The office of coroner is of great antiquity, and no satisfactory account of its origin can be given. It is said to have existed in the time of the Anglo-Saxon kings, but the authority for this statement is doubtful. The right to elect a coroner for London appears to have been granted to the citizens by Henry I. In 1194 the justices of Eyre were directed to see that in every county three knights and a clerk as custodian of the pleas of the Crown should be chosen. The office may, therefore, be safely assumed to have existed at least as early as the beginning of the thirteenth century, and there is other evidence to show that officers having powers similar to those of coroners were in existence before that date.
It is to be noticed that, while the officer whom the citizens of London were empowered to elect under the charter of Henry I was to hold pleas of the Crown as well as to keep the records, the officers whom the justices were to see appointed in each county were only to keep the pleas. The curtailment in the duties of the office was confirmed by the provision of Magna Carta that ‘no sheriff, constable Escheator, coroner, or any of our bailiffs shall hold pleas of our Crown’.[1]
Viewing Body
It seems to be accepted that the Statute De Officio Coronatis (1276) is the first document that sets out the jurisdiction of coroners. It contains in modern parlance the following words:
The coroner should go to the place where any person is slain, or suddenly dead or wounded, or where houses are broken, or where treasure is said to be found, and should by his warrant to the bailiffs or constables summon a jury out of the four or five or six neighbouring towns to make inquiry upon view of the body; and the coroner and jury should inquire into the manner of killing and all the circumstances that occasioned the party’s death; who were present, whether the dead person was known, and where he lay the night before; they should examine the body to see if there be any signs of strangling about the neck, or of cords about the members, or burns. Also weapons should be viewed and inquiry made with what weapons.
And the coroner may send his warrant for witnesses, and take their examination in writing; and if any appear guilty of the murder he should inquire what goods, corn and land he hath; and then the dead body should be buried. A coroner may likewise commit the person to prison who is by his inquisition found guilty of the murder: and the witnesses should be bound by recognizances to appear at the next assizes.[2]
His Honour O’Keefe J in X v Deputy State Coroner for New South Wales[3] also provides a brief historical background to the office of coroner, and its introduction into Australia. The reason for the office of the coroner being established in England and Australia has been judicially attributed to the concerns of members of ‘even the most primitive societies’ to have explained ‘unusual, violent or suspicious deaths’.[4]
Protecting King’s Revenue
During mediaeval times in England, the coroner was involved in protecting the King’s interests including protecting his revenue, as well as in investigating death. The sheriff and coroner were known to engage extortion with the coroners being corrupt but to a lesser degree. R. F. Hunnisett makes this point in the following way,
The medieval coroner is thought to have been of a far higher character, less oppressive and less extortionate than the sheriff. He may have been, but he nevertheless practised extortion regularly, if moderately.[5]
The usual form of extortion was taking money to hold an inquest, or if money was not forthcoming ‘taking of the upper garment from the dead body’, or causing a felon’s ‘chattels to be appraised at less than their true value’ and retaining the difference.[6] The modern coroners have avoided the stigma associated with corruption. The police who advise and assist them have been less successful.
Originally, the Coroner’s duties were of a fiscal nature; but as an unnatural death might bring revenue to the Crown, it soon became one of his most important duties to inquire into such deaths. In 1276 the coroner’s duties were set out in detail in the Statute De Officio Coronatoris. When informed of a sudden death, he was to go to the place and bring before him representatives of the four nearest townships; and to inquire where the person was slain and who was there and who was guilty. Those found guilty were to be delivered to the Sheriff and gaoled, and steps were to be taken to ensure the availability of witnesses at the Assizes.
It is claimed that the first reference to coroners appeared in the Articles of Eyre 1194, and that coroners were used to ‘check the increasing corruption practiced by sheriffs who were royal bailiffs, the King’s administrative officials at a local level’.[7] Modern coroners have no role in identifying or controlling corruption, except as might be revealed during an inquest. The ‘true origins’ of the coroner it is said should be dated from the Council of Eyre in 1194.[8]
The coroner’s role as revenue protector has disappeared and the function as a death investigator has been greatly modified. In the time of Henry I, coroners were engaged in the investigation of cases involving a variety of crimes and accidents. The coroner’s legal process of inquiry was known as the inquisitor, or inquest and meant merely an inquiry of any sort, not just into death.
Criminal Investigation
The coronial inquests were held on arson, rape, dead bodies, treasure trove, royal fish, and wrecks of the sea. Inquests were held on other matters if a special writ so directed, and all of these investigations were carried out with the aid of a jury. The coroner also heard confessions of felons, dealt with abjurations of the realm, and oversaw the processes of turning approver and exigent. The latter was a process of demanding a person’s presence in the county court, non-compliance resulting in outlawry.[9]
An important aspect of the coroner’s function was to keep basic records of their activities. So that,
When an eyre was imminent the coroner would transcribe [those records] on a roll, which consisted of larger pieces of parchment either sewn together at the top and rolled up (Exchequer fashion) or else sewn together end to end and rolled up (Chancery fashion). The coroner’s roles were ‘of record’, meaning they could not be traversed in any way. The concept of the record began with the Doomsday Book, which could not be questioned either. It stated facts which were the truth. Thus developed an early antecedent of the concept of precedent as we know it.[10]
The coroner was not considered a judicial officer in mediaeval England despite having authority to investigate crimes and accidents where negligence may be found – functions that are not performed by contemporary Australian coroners. McKeough states:
The coroner however, was in no sense a judicial figure. Chapter 24 of the Magna Carta acted as a safeguard against the usurpation of royal authority, in providing ‘that no sheriff, constable, coroner or other of our bailiffs shall hold pleas of our crown’ that is, not be criminal judges in any sense.[11]
While the mediaeval coroner may not have been regarded as a ‘judicial figure’, the contemporary Australian coroner has been described as being a tribunal conducting inquiries ‘as an instrument of the administration of public justice’[12], despite the gradual diminution of criminal and civil authority of coroners over the centuries[13]. Coroners have also been described as conducting ‘quasi-judicial’ inquiries:[14] and inquiries ‘more analogous to an administrative inquiry’[15]. One reason that may support the hypothesis that coroners are judicial officers is that coroners’ courts are courts of record. Thomas MacNevin in his Manual for Coroners and Magistrates in New South Wales in 1884 cites a number of authorities and the fact that coroners can exclude the public from hearings to give them the status of ‘judge’. He stated:
The Court of the Coroner is a Court of Record, of which the Coroner is Judge, and whatever may formerly have been a question of right, it is now clear law that the Coroner has the power of excluding not only particular individuals but the public generally.[16]
Court of Record
The coroners’ court in the Australian Capital Territory[17] and Queensland[18] are by statute constituted as courts of record, and in New South Wales there is some case law support for the proposition[19]. In every State and Territory, findings are recorded, but the effect of any record may have a different consequence to the mediaeval ‘role’. Consideration of whether or not contemporary coronial courts are courts of record does not greatly assist in determining whether coroners are performing a judicial function. The contemporary coroner makes findings but does not adjudicate between parties; and, in respect of a number of functions, is under Ministerial supervision.[20] Although removed from the pressures that caused the creation of the position, largely through the development of common and statute law, the role of inquirer into death remains, in large part, unchanged.
Assisting Police
In Australia, a coroner plays a role in assisting police in homicide investigations where the identification of an offender, sufficient to allow a charge, has not occurred. A coroner is also required to take into account the interests of relatives, where such interests are raised. These activities remain subservient to the function of determining manner and cause of death.
Apart from investigation of death cases, coroners can investigate the origin and cause of fires. The investigation of the origin and cause of fires is referred to in this work but not analysed in depth as it appears to be a departure from the historical role of coroner. Another significant departure from the historical functions of coroners is the provision in some legislation for coroners to make recommendations: public safety being the main area of concern.
The development of police forces and forensic medicine has resulted in the role of coroner becoming less relevant in the twentieth and twenty first centuries. The largely ancillary role of coronial investigations, and the proliferation of quasi-judicial investigative bodies, brings into question the need for a coronial system. The vast majority of a coroner’s work is administrative, not requiring any forensic investigative skill. The historical role of coroner and how it is affected by the development of police forces is referred to by Hunt J. in Mirror Newspapers Ltd v Waller;[21] who described the historical role of the coroner as follows:
At least one of the coroner’s functions, in particular, would make an observance of the usual rules of procedure and evidence an impossibility. I refer to the coroner’s residual investigatory function. Historically, the coroner investigated all cases of sudden death. He did so because his duties originally were fiscal in nature, and the unnatural death of a citizen could produce revenue to the Crown. According to the Statute De Officio Coronatoris, of 1276, the coroner was obliged to determine where such a person was slain, who was present and who was guilty. Since the establishment of a regular police force, this investigatory function of the coroner has been largely, but not entirely, superseded. According to a report of the Chief Justice’s Law Reform Committee, submitted in 1964 (and published in Appendix B to the Report of the Law Reform Commission on the Coroners Act, 1960 (LRC 22 1975)) a coroner’s inquest is still used as an aid to the police, in order to afford them an opportunity of furthering their investigations by the examination and perhaps cross-examination of witnesses under oath (par 3 at 88).[22]
In the ‘Interim Report No. 6’ of the Chief Justice’s Law Reform Committee, referred to by Hunt J, the view that a coroner’s investigator function might be superseded is discussed in the following terms.
In 1276 the Coroner’s duties were set out in detail in the Statute De Officio Coronatoris. When informed of a sudden death, he was to go to the place and bring before him representatives of the four nearest townships; and to inquire where the person was slain and who was there and who was guilty. Those found guilty were to be delivered to the Sheriff and gaoled, and steps were to be taken to ensure the availability of witnesses at the Assizes. In time, this became the Coroner’s only substantial function.
With the establishment of a police force, the Coroner’s function as an investigator was largely, if not entirely, superseded. Indeed, in this State, he becomes seised of jurisdiction only when notified of a death by the police. He formerly examined the evidence placed before him by the police (or in special cases such as those of deaths in police cells by counsel briefed by the Crown) to ascertain whether a prima facie case was made out against any person but he could summon witnesses and he could hear other evidence as he thought fit. This rarely happened.[23]
Despite the suggestion that a coroner only becomes involved when told of a death by police, there is nothing in common law or by statutory that stops a coroner investigating a death whether notified by the police or not, if it fits the statutory requirements.
With the establishment of a police force, the coroner’s function as an investigator was largely, if not entirely, superseded. It is usual for a coroner to formerly examine the evidence provided by the police (or in special cases such as those of deaths in police cells by counsel briefed by the Crown) to ascertain whether a prima facie case was made out against any person, but he could summon witnesses and he could hear other evidence as he thought fit. This rarely happened.[24]
This description provides assistance in understanding the current functions of a coroner and places in context the role of a coroner’s inquest. Hunt J’s view places the coroner as an investigator, in the position of a last resort facilitator for police investigators. This analysis appears to be supported by Thomas MacNevin in 1884 when he advises coroners that they should seek the advice of police before embarking on inquiry. He advised:
It would be desirable, whenever practicable, to communicate with the chief or nearest officer of police in the district, with a view of ascertaining whether any clear ground exists for suspecting that death may have been caused by some foul means, before the Government is put to the expense of such inquiries. The Coroner on receiving information of a suspicious death should, if satisfied of its correctness, proceed with all possible expedition to the spot where it is said that the body lies, taking with him a Bible, writing materials, forms of inquisition, recognizances to bind over witnesses and to prosecute, warrant for the burial of the body, and for the apprehension and commitment of any person who may be charged by the verdict with any crime, and a sufficient quantity of foolscap paper for taking the necessary depositions.[25]
The role of the police, inter alia, is to investigate crime and, in this process, gather relevant, probative evidence; and where possible apprehend and bring suspects before a court. Suspects are presumed innocent until such time as they are found guilty beyond reasonable doubt by a properly constituted court.[26] Similarly, a coroner can investigate, inter alia, suspicious deaths which may be crimes, gather relevant and probative evidence and, where considered appropriate, refer for consideration the prosecution of individuals in New South Wales to the Director of Public Prosecutions.[27] Although there are many distinctly different functions, a coroner in most cases relies primarily on the police for assistance. This is the case even where an inquest or inquiry is dispensed with and the function is mainly administrative, in such cases a coroner reviews the evidence collected by the police. As is the case with police, fact gathering is the primary function of a coroner: any findings or recommendations have no direct consequences. Lord Lane CJ in Reg v South London Coroner; Ex parte Thompson[28] emphasises the fact finding function of an inquest. He states that,
Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring whichever metaphor one chooses to use.
Hidden J cites with approval Lord Lane CJ’s comments in Musumeci v Attorney General of NSW & Anor[29], as does Toohey J in Annetts v McCann.[30]
Fact Gathering
It is difficult to disagree with the description of a coronial inquest as a ‘fact finding exercise’ both historically and as it could still be described in Australia. One of the main distinctions between police investigations and coronial investigations is the fact that ‘parties’ can appear at inquests. Appearance of parties and the examination of witnesses at inquests or inquiries are specified by legislation.[31] However, as is the case with police, a coroner cannot determine whether or not a case against an accused has been proven beyond reasonable doubt. Coroners though, unlike police, have a further limitation in that they cannot bring a criminal charge against any person.
The authority of coroners in colonial times extended to issuing warrants and committing for trial. The criminal jurisdiction functions of coroners in the colony of New South Wales are described by MacNevin as follows,
In his judicial capacity he has to inquire when anyone comes to his death suddenly or violently, how and by what means such death was cause.
The inquiry of the Coroner must it seems be restricted to the cause of death of the person upon whom the inquest is taken, and cannot be extended to accessories after the fact. He may, however, inquire of accessories before the fact, for such are instrumental to the death. It is not his province to accuse anyone or to arrest any suspected person beforehand, or even to assume, and act on the assumption, that deceased met his death by foul means, although, in the case of a verdict implicating a supposed murderer, the Coroner has the further duty imposed on him of committing the accused, and binding over the witnesses against him to appear at the trial.[32]
In all states and territories, except Queensland[33], committals for trial are now performed by magistrates authorised other than by coronial statutes. Even if coroners exercised a committal function, they would be exercising an executive or ministerial function; they would not be engaged in a judicial inquiry.[34]
A Hybrid System
A coroner may exercise some judicial power, but such power is limited in scope.[35] In exercising the functions conferred by statute and common law, a coroner can engage in both inquisitorial and adversarial investigative methods. The investigative method employed outside of hearings primarily involves a review of police generated documentation. In Musumeci v Attorney General of NSW & Anor Ipp JA, with whom Beazley JA agreed, stated that:
Mr Johnson emphasised the investigatory nature of an inquest. Mr Basten SC, senior counsel for the claimant, emphasised the adversarial process inherent in an inquest. Courts have found it difficult to characterise the precise juristic nature of an inquest. For my part, I do not think it necessary to embark on that exercise. I think it sufficient to note, firstly, that it is a hybrid process containing both adversarial and inquisitorial elements. Secondly, coroners exercise judicial power, notwithstanding the executive nature of their functions. Thirdly, the proceedings in the Coroner’s Court involve the administration of justice.[36]
There is a tension between the ‘adversarial and inquisitorial elements’. However, of greater significance, are the powers and the extent to which those powers can be exercised by a coroner. This is, perhaps, to what Ipp JA was referring when he used the words ‘precise juristic nature of an inquest’.
In Fairfax Publications Pty Ltd v Abernethy [37] Adams J considered the functions of a coroner in historical context when deciding on the validity of a non-publication order made by the then Senior Deputy State Coroner, John Abernethy. He noted that the investigation of crime function of coroners has been specifically removed by the New South Wales Coroners Act 1960.[38] He also noted that the Coroners Act 1980 did not give coroners jurisdiction to conduct an investigation ‘as such’: the purpose of any investigations being to permit an inquest ‘conducted for the purpose specified in s 13 of the Act and, subject to the considerations in s 44 and the exceptional circumstances referred in s 32 concerning representation, in a public hearing involving the participation of persons with a sufficient interest in the subject matter and relatives of the deceased’.[39] Section 13 of the Act allows a coroner to hold an inquest where a death or suspected death occurred in ‘suspicious’, ‘violent’, or ‘unnatural’ circumstances, or ‘within 24 hours after the administration of anaesthetic’, or whilst ‘absent from a hospital within the meaning of the Mental Health Act 1990’. There are also provisions within the Act to hold inquests into deaths in custody and inquiries into fires. Regardless, of the additional matters that can be investigated referred to in the Act; if Adams J is correct, then further support is given to the proposition that a coroner’s function is an extension of police investigations which involve death. The Coroners Act 2009 (NSW) has similar limitation to those identified by Adams J.
The rise of professional police forces has led to a decline in the range of cases investigated by coroners. In the event of police being able to investigate suspicious death cases with greater success, the role for coroners would be further reduced. Their role in investigating suspicious death cases is utilised by police to assist in providing evidence to allow charges to be laid. However, any suggestion that coronial inquests may provide significant assistance to the police with investigation of crimes and ultimately the laying of charges is not supported by evidence gathered as a result of coronial investigations in New South Wales. The Chief Justice’s Law Reform Committee noted in this regard:
It is put on the question of usefulness that as a matter of practical experience inquests do not in fact provide a supplement to police investigations which is of any real value. Although up to the present date twenty-six cases had been referred by coroners to the Attorney-General under s.28(2), in none of them did the Attorney-General file a bill. We have not the details but it is believed that most of these were fatal accident cases in which there was a difference of opinion between the coroner and the police as to whether criminal negligence was evidenced. We have no knowledge of any case in which the police have laid a charge after an inquest as a result of information elicited in the course of it. It is suggested in the Wright Committee’s Report that this may happen in certain classes of inquests.
None the less the police themselves and the Public Solicitor, who was formally a Clerk of the Peace, hold the view that the coroner’s power to summon witnesses and to examine them (including the suspect, if any) did in fact assist police investigations, particularly as the evidence was given on oath, and that information might be thus forthcoming which could otherwise been lost to investigating officers. It is also to be noticed that the coroner’s power to summon a witness may be the only way of preventing a witness from leaving the country while investigations are pending. However, although an inquest does provide an interested party who may be unwilling to give information to the police with an opportunity of placing it before a judicial functionary, our inquiries indicate that seldom if ever is any information of value so obtained. The most that can be said is that in this regard the inquest has undoubted potentialities which have not in recent times been of significant practical value and in the future it would seem are not likely to be. . . .[40]
The situation since the Chief Justice’s Committee’s report may not have changed significantly. There are, however, some examples of where a coroner has tested the evidence, mainly collected by the police, and referred the matters to the Director of Public Prosecutions for consideration to laying charges by way of ex officio indictment.
Until the mid-nineteenth century, coroners and juries were involved in the identification of the cause of death; the identification of negligence and in seizing chattels (deodands) or their monetary value, if they were involved in the cause of death. In the words of Forbes:
Under English Law an object ‘moving to the death’ of a human being was a deodand. The latter or its monetary equivalent were forfeit to the Crown, supposedly to be used for good works. If the death constituted a felony ie manslaughter or murder, a deodand was not required. It was the duty of the coroner’s jury to identify the deodand and determine its value, which was to be paid by the owner. Inquisitions frequently mentioned deodands. They illustrated how a jury’s decision could be influenced by the sympathies of the jurors. When, for example, a horse knocked down a pedestrian in the street, and again when a horse kicked its groom in the head, the horseshoe was named and the deodand and its value was fixed at 5s. In a similar case the shoe was valued at 1s. However, when the Blackwell Coach ran down a four-year-old girl, the coach and horses were identified as the deodand and were valued at 10 pound.
Abolition of the deodand, which was not to occur until 1846, was hastened when coroners’ juries began not only to name steam vessels as deodands but to set increasingly large valuations on the craft, particularly when a jury was convinced that an accident had occurred because a ship was being operated on the busy Thames in a dangerous fashion.[41]
In Australia, the coronial system is no longer involved in identifying whether negligence was involved in the cause of death and extracting compensation.
Very little detail exists of the reasons for coronial findings in nineteenth century England as was noted by Forbes:
As mentioned earlier, the paucity of surviving information regarding many coroners’ cases is disappointing. In part the deficiency exists because these records were deposited primarily to justify the payment of fees to the coroners; such use did not in itself necessitate many details. But there was also an element of official neglect. The office and function of the English coroner were in general at a low level in the eighteenth and much of the nineteenth centuries according to such knowledgeable critics as Thomas Wakley (1795-1862), Member of Parliament, founder in 1823 and first editor of the Lancet, and first (1839-62) medically qualified coroner in London. Nonetheless, the inquisitions are a vivid record of the past; their grim accounts of accidental and violent and suspicious death reveal also a good deal about life in Middlesex.[42]
The extent to which any inquest or inquiry is relevant to civil litigation is a matter beyond the scope of this work, however, any assistance given would be a matter largely of what could be gleaned from the evidence received, rather than any findings.
The History of the Coroner in New South Wales
Colonial Times
The Charter of Justice 2 April 1787 (UK) is the document that provided authority for the establishment of the first courts of criminal and civil jurisdiction in New South Wales. Professor Alex Castles records that between 1788 and 1810 in New South Wales magistrates carried out inquests into deaths.[43] He notes that the records in New South Wales are incomplete but that ‘the first regular use of juries in Australia began in relation to coronial inquiries before the end of the eighteenth century. In two inquests in 1796 before Thomas Smyth, who is described as coroner, juries of twelve men were empanelled to assist the coroner in determining the causes of death’.[44] Castles refers to the difficulty of applying the coronial jurisdiction to Aborigines:[45] a situation that was found to be the case in the latter part of the twentieth century by a number of Royal Commissioners involved in the Royal Commission into Aboriginal Deaths in Custody.[46] Castles observes in respect of the first part of the nineteenth century that,
It was one thing to declare the aborigines and Europeans were equal before the law, as Governor Arthur had proclaimed in pictorial messages nailed to trees in Van Dieman’s Land in 1828. In these, an Aborigine was shown being hanged after spearing a European. In an accompanying panel there was a representation of a European being hanged for shooting an Aborigine. In Sydney, Gipps could direct, as he did in 1838, that coronial inquests should be held in all cases where Aborigines lost their lives in consequence of ‘a quarrel or collision with white men’. In practice, however, Aborigines could face difficult, often insuperable difficulties in the conduct of legal proceedings. And this was so, both where Aborigines were the accused persons or where offences may have been committed against them. [47]
The first Coroners Act in New South Wales was passed in 1898. This legislation allowed for the coroner to grant bail where a coroner’s ‘inquisition charges a person with the offence of manslaughter’.[48] This provision no longer exists; coroners or juries can no longer bring a criminal charge for the offence of manslaughter. The Act also allowed for the calling and examination of medical witnesses.[49] It abolished the verdict of felo-de-se,[50] although the verdict had already been abolished on 23 February 1876 when 39 Vic. No. 22 was passed.[51] The first Coroners Act also required the coroner to hold an inquest where a person had been executed to ensure that the execution ‘was duly carried into execution’.[52] It provided for coroners to hold inquests into the cause and origins of fires.[53] The Coroners’ Act 1898 comprised only twelve sections and was intended to consolidate enactments relating to coroners’ inquests and magisterial inquiries into the cause of death. The next Coroners’ Act was introduced in 1901. It comprised six sections which allowed for the following: every coroner and deputy coroner to have the powers and duties of a justice of the peace:[54] every stipendiary and police magistrate to have the powers and duties of a coroner except in the metropolitan police district:[55] it removed the right of prisoners to be jurors at inquisitions concerning the death of a prisoner:[56] it allowed inquisitions to be held on Sunday:[57] and it allowed a coroner to direct that a prisoner be brought from gaol to an inquisition.[58] Further substantive legislation was passed in 1912, 1960, 1980 and 2009. The Coroners Act 1980 introduced numerous changes to coronial functions;[59] it also repealed the Coroners Act 1960. The most important changes related to jurisdiction. In this regard, the provision for magisterial inquiries, referred to in the 1960 Act, was abolished. The term ‘magisterial inquiry’ was relevant when there was a requirement for a coroner’s inquest to be held super visum corporis (upon view of the body). The magisterial inquiry could occur without a view of the body. The distinction had no meaning with the introduction of section 15 of the Coroners Act 1960. Section 15 stated:
A view of the body of a deceased person or of the scene of a fire shall not, upon any inquest or inquiry, be taken by the coroner, or where there is a jury, by the jury unless the coroner deems it advisable to do so.
The 1980 Act clarified the position and allowed a coroner to hold an inquest concerning the suspected death of a person. It also allowed a person to apply to the Supreme Court to have an inquest or inquiry set aside and to hold a new inquest or inquiry before another coroner.
Stipendiary Magistrates
The Coroners Act 1960 introduced the requirement that only stipendiary magistrates might exercise jurisdiction as coroners in metropolitan Liverpool, Newcastle, Parramatta, and Ryde police districts, except that deputy coroners could sit if the coroner was ill or unable to act. The 1960 Act removed from coroners the power to commit any person for trial on inquisition on a charge of murder, manslaughter or infanticide. It therefore divested coroners of powers to investigate criminal cases and of committal for trial. The 1960 Act introduced a measure which expressly prevented a coroner from indicating in any way that a person was guilty of an indictable offence. Section 28(2) of the Act required a coroner to halt an inquest where he or she formed the opinion that there was a prima facie case against any known person for an indictable offence and refer the depositions to the Attorney-General. This action was required before any findings were made. The Attorney-General, Mr R.R. Downing, in the Second Reading debates in the Legislative Council, provided some rationale for this departure from the previous law. He stated:
At the conclusion of an inquest a coroner is required to set out his findings, the identity of the deceased person, when and where he died and the manner and cause of death; but the measure expressly prevents a coroner from indicating or suggesting in any way in his findings that any person is guilty of an indictable offence. Hon. members will be aware that although the inquest is only in the nature of an investigation, under the existing law a coroner committing a person for trial for murder or manslaughter or a justice in a magisterial inquiry in coming to the conclusion that a prima facie case has been established against a person for murder or manslaughter, brings in a finding which amounts to an explicit finding of guilty against that person for the offence named. Irrespective of whether the accused person subsequently establishes his innocence, the coroner’s finding remains on the record for all and sundry to see and hon. members will agree that it is contrary to the principles underlying the criminal law of this country that an accused person should remain under such a cloud for the rest of his life.[60]
The Coroners Act 1912 consolidated some of the previous law including the abolition of felo-de-se.[61] It was, however, not until 1960 that an attempt was made to provide more than a rudimentary outline of the functions of a coroner.
The Coroners Act 2009 regulates the exercise of coronial jurisdiction in New South Wales today. The common law remains relevant because it has not been specifically abrogated.[62] In Victoria[63], South Australia[64], Western Australia[65], and Tasmania[66] the common law has been specifically abrogated. A common law remnant that has had little application in the remaining common law states and the territories is ‘treasure trove’.[67]
In 1988, the New South Wales Attorney General, Mr J. Dowd, made the following comments about the development of the coronial system, during the Second Reading speech of the Coroners (Amendment) Bill.
The basic structure of the New South Wales coronial system has remained relatively unchanged since the turn of the century. One of the important developments during that time has been the tendency to rely on magistrates and clerks of the courts, instead of private citizens, to undertake coronial work. This professionalization has occurred because of the need in modern times for more extensive legal knowledge and administrative skill in dealing with reports of deaths and fires, which has made the coronial function increasingly unsuitable for untrained lay people.[68]
These comments by the Attorney General in 1988 provide a useful description of the lack of reform of the coronial system throughout the twentieth century. If there remains a legitimate place for coronial investigations, findings and recommendations[69], there is a compelling case for the need for substantial reform. The twenty-first century has seen little change. The 2009 Act has introduced changes that are largely cosmetic.
Viewed in an historical context, the limitations of the coronial system are explicable. Considered in a national context, there is need for reform in all states and territories, because of their strikingly similar laws and procedures. A recurring theme throughout the twentieth century was the desire of governments to save costs in the jurisdiction. There is little by way of evidence to show that in the twenty-first century that governments want to invest in death investigation and death prevention.
Expressions of Dissatisfaction with the Coronial System
Hilton Bombing and Chelmsford Hospital
Dissatisfaction with the coronial system was expressed most cogently in 1995 by the Hon. Elisabeth Kirkby in the Legislative Council during the Second Reading debates on the Coroners Amendment Bill. Her criticisms go to the failure of coronial inquests to expose corruption and false evidence. In this regard, her criticisms are not so much related to any structural insufficiency in the coronial system but to its chronic inability to thoroughly investigate deaths. She stated inter alia:
It is no surprise, and I am sure that honourable members will agree, that those represented at such inquests [Hilton bombing inquest] feel outraged, while those who have served on coronial juries so discharged feel that their service was a farce. In the past, even if an inquiry proceeded to completion, the provisions of the existing statute required a jury to be directed to return a very narrow verdict. More often than not many of the issues sought to be raised during the hearing fell outside the scope of the verdict that could be returned. Whilst section 22A of the existing Act now allows a recommendation to be made as to health and safety, the ambit of the hearing still needs to be widened further.
. . . .
The narrowness of past inquiries has helped to fuel widespread public dissatisfaction and distrust of the police and government of the day. Unhappily, the evidence that is being given at the current Royal Commission into the New South Wales Police Service which is making headlines daily in our newspapers only increases this distrust. I believe the prime example of a narrow inquiry is the inquest into the Hilton bombing. It never investigated serious allegations in relation to the involvement of the Australian Security Intelligence Organisation and government agencies. The termination of that inquest never enjoyed public acceptance. A subsequent inquiry showed that the inquest had seriously miscarried.
. . . .
Unhappily, the coronial system has contributed nothing to the exposure of police corruption, despite a continuing series of inquests relating to the deaths of drug dealers and addicts. Coroners in such cases have reported on the manner and cause of death, but the public interest demanded a deeper look at the murky world of drug culture and police corruption. We cannot tolerate the continuation of such failures to inquire. The increasing complexity of our society requires that there be a greater opportunity for concerned citizens to explore what are perceived to be inadequacies in relation to the performance of public duties where death has ensued, or where explosions or fires have occurred in controversial circumstances.[70]
Kirkby’s criticisms extended beyond the inability of the coronial system to expose police corruption and reflected upon its failure to appropriately expose medical deaths. In this instance, she used the infamous example of deaths in Chelmsford Hospital. Chelmsford Private Hospital was the subject of a Royal Commission, which heard evidence over two hundred and eighty-eight days between October 1988 and July 1990, largely because of its ‘Deep Sleep Therapy’ (DST) in the 1960’s and 1970’s. It was a hospital that allowed negligent doctors under the supervision of Dr Harry Bailey to employ ‘therapies’ including excess medication that killed patients. Bailey committed suicide in September 1985. At the time of his death, civil actions and criminal investigations were underway.[71]
The Royal Commissioner described how patients died as a consequence of the use of Deep Sleep Therapy in the following way:
The first patients died in 1964. In the second half of 1964, five patients died during DST and possibly their deaths were also associated with a golden staph epidemic in Sydney. DST made them more susceptible to this infection. . . .
A large number of patients were treated for complications these being mainly infections, pneumonia and deep vein thrombosis. The unconscious condition and immobile position contributed to these complications. There was incontinence of urine and faeces and impaction and retention. There were restraints used to prevent falling from the bed, fractures and falls, vomiting, skin breakdown and metabolism imbalance. At the end of the treatment there were gross visual distortions and hallucinations and severe weakness.[72]
Although the Royal Commissioner found that twenty four deaths had occurred as a result of the Deep Sleep Therapy[73] the coronial system in New South Wales did nothing to prevent the deaths: very few inquests were held, or relevant findings made.
M.G. Sexton lists nine inquests arising from deaths at Chelmsford Private Hospital between 6 September 1967 and 20 July 1979.[74] Some of the findings included ‘death by barbiturates self-ingested’[75] and in one case the cause of death was not ascertainable due to the decomposition of the body.[76] It is extraordinary that such findings could be made when Harry Bailey prescribed and administered the barbiturates, and the hospital was well known for its death rate. Sexton notes
Given that sedation therapy was employed at Chelmsford Private Hospital between 1963 and late 1978, it [is] evident from the dates [of the inquests] that all of the inquests referred to, except the Carter Inquest, took place either towards the end of this period or after the cessation of the treatment at Chelmsford.[77]
The coronial system over the past century has been particularly notable for its failure to identify the manner and cause of deaths in hospitals and in custody. No explanation, or even attempted justification, has been made by relevant government ministers or coroners for the failures.
The Chelmsford Private Hospital example of investigative failures and those provided by the Hon. Elisabeth Kirkby in the Legislative Council are used to emphasise the need for reform. They also put the investigative failures in recent historical context: though the limited records which are available make it unmanageable for investigative failures that may have occurred in the nineteenth century to be used to show a continuum.
The examination of the historical role of coroners explains why they exist as death investigators in Australia. The historical role does not, however, provide much assistance in understanding the many investigatory failures they have supervised. In New South Wales the narrowing of the functions of coroners by the removal of areas of jurisdiction such as: criminal committals; identification of negligence with the power to seize chattels for compensation; and inquisitions for manslaughter with power to grant bail, has not ensured that the exercise of the remaining functions has been effective. Likewise, the adjustment of statute law to incorporate sections relevant to findings about manner and cause of death has not resulted in the successful fulfilment of the role.
In order to gain some understanding of the reasons for the many investigatory failures it is necessary to examine the appointment, qualifications, functions of coroners as well as the law and procedure under which they operate. The willingness of government to engage in real law reform of the coronial system is of course determinative if the system is to improve. Consideration also needs to be given to the prospects for rehabilitation of the coronial system by law reform: as part of this process, it is appropriate to reflect upon the possibility that the system is inherently incapable of improvement having been infected by bad practices for too long and may need to be replaced by an entirely new system.
Damage to Reputations
The coronial system can damage the reputation of a person suspected of committing an offence. The very least the two examples below prove is the need to have experienced, qualified, and trained coroners.
Case Example – Sydney Aitken
An example of damage to reputation caused by the failure of the inquisitorial method, assisted by the statutory exclusion of the rules of evidence, occurred at the inquest into the suspected death of Kathleen Marie Aitken. The consequence of the failure was to expose a person to defamatory, untruthful allegations. On Monday 26 August 2002, the inquest commenced presided over by a Deputy State Coroner.
Kathleen Aitken was reported missing by her stepsister Patty Hazelwood in June 1998; it was suggested she had lost contact with friends and relatives when she was 21 years old, in 1970.[78] Mrs Hazelwood claimed that she had previously reported the disappearance of her sister to the Missing Persons Unit of the New South Wales Police Service but they did not take any action and had no record of her reporting the disappearance.[79] Kathleen Aitken’s father, Sydney Aitken, was exposed to innuendo and allegations that linked him to his daughter’s disappearance both in the outline of evidence provided by the police officer assisting the inquest and through the direct evidence of Delores Joy Green a stepsister who claimed to have a ‘close relationship’ with Kathleen Aitken.[80] The police officer without objection, or control from the coroner, asked a series of questions which elicited opinions from Mrs Green that had no factual basis. The following questions and answers assisted in the defamation of Sydney Aitken:
Police Officer: What do you think happened to Kathy?
Green: You really want me to say?
Q: Yes I do. I realise it’ll be difficult for you?
A: It is.
Q: And you’re getting emotional, just take your time but you’re one of the closest people who knew her – –
A: I don’t like saying things about people but I really think he did away with her, somewhere, somehow. I really think that.
Q: And who do you mean by who?
A: Her father. And I’m sorry, but I really feel that.
Q: You’re talking about Mr Aitken?
A: Yes.
Q: And why do you feel that way?
A: Because she was always frightened of him and because I know what he thought about Mum and everything, just – you add it up, you think about it, and you can’t help but feel it.[81]
This approach to questioning does nothing more than allow a witness to speculate. It has no probative value.
Mr Aitken’s ex-wife, Sylvia Norma Ross, also gave evidence and was questioned in a way that promoted speculation on her part. A series of questions were asked about Mr Aitken’s drinking patterns, and despite receiving answers that revealed he was never abusive towards her[82] and that she had no examples of him striking his daughter,[83] she was allowed to opine, ‘I thought he might have got drunk and they’d had an argument, either about me or his mother or the position they were in and I thought he might have you know punched her up and perhaps gone too far’.[84]
On the same day that the inquest commenced, it was adjourned by coroner who decided that further investigations needed to take place. He was concerned about photographs of two boys who, Sydney Aitken said, were the children of his daughter Kathleen. Kathleen Aitken had no children when she was last seen by her stepsisters, hence the children must have been born after his daughter’s alleged disappearance, or the boys in the photographs were not her children. The coroner, when questioning Sydney Aitken, suggested that if the photographs were not of his daughter’s children, then Sydney Aitken’s evidence would be a matter of ‘grave’ concern’.[85] The coroner’s comments allowed the inference to be drawn that Sydney Aitken may have had a role in the disappearance of his daughter. The coroner did state in open court when adjourning the inquest, that ‘there is no evidence to suggest that he [Aitken] has commented any criminal offence’.[86] He did, however, encourage the involvement of the media[87] and allowed innuendo to flourish in his court.
On 27 August 2002, the Daily Telegraph published an article that led to Sydney Aitken taking an action in the Supreme Court of New South Wales for defamation. The Daily Telegraph article contained the headline ‘Slain by her dad or alive and well with kids’.[88] It also produced photographs of Kathleen Aitken, Sydney Aitken, and two boys and a girl under the heading ‘These are “her children” ’.[89]
On 16 February 2004, in the Supreme Court of New South Wales, a jury answered the following questions in the affirmative.
Has the Plaintiff established that the matter complained of, in its natural and ordinary meaning, conveyed to the ordinary reasonable reader the following imputation of and concerning him (or an imputation which is no different in substance):
That he so conducted himself as to warrant reasonable suspicion that he had killed his daughter, Kathleen Aitken?
That he had falsely denied murdering his daughter Kathleen Aitken?
That he had so conducted himself as to warrant reasonable suspicion that he had killed his daughter, Kathleen Aitken?[90]
On Tuesday 8 October 2002, in the Coroner’s Court, the coroner heard from the police officer assisting that Kathleen Aitken had been found and that she denied being a missing person.[91] The coroner provided the following words of ‘solace’ to Mr Aitken,
. . . I certainly express to Mr Aitken that he will certainly, I suppose, everyone is a suspect particularly the last person that might see someone alive when they disappear, but this has been a good result now, she has been located. She has requested that her identity and her address remain confidential. We have to respect that.[92]
The coroner’s disjointed explanation about Mr Aitken’s ‘suspect’ status did little to address the damage to his reputation, in part caused by the coroner’s failure to control questioning in court.
The lack of statutory restrictions on the way evidence is received in open court and the appointment of guileless coroners can have adverse consequences for innocent individuals as shown in the Aitken case. The absence of the rules of evidence in the coronial jurisdiction can be distinguished from a similar lack of the applicability of the rules of evidence in a police investigation. In the situation where police are questioning a witness, such questioning occurs away from the public gaze, and any information received as a result can be tested to determine its admissibility in open court. In Aitken’s case, the evidence of his ex-wife and Kathleen Aitken’s stepsisters about their suspicions would probably not have been admitted if the rules of evidence applied, because their opinions had no factual foundation and therefore could not have been relevant or probative.
Case Example – Jenelle Patton
Another example of the coronial system being used in a way that unnecessarily damaged the reputation of an individual can be found in the Janelle Patton case.
On Easter Sunday, 31 March 2002 a 29 year old woman Janelle Patton was violently killed on Norfolk Island. It was reported that the 2,771 people who were present on the island on that day became suspects, so one of them had to be the killer.[93] One person working on the island is reported as stating that the island residents were on the lookout for anyone acting bizarrely, which might betray their guilt.[94]
A coronial inquiry into the death ran for four days in the first week of June 2004. At the inquest, a Detective Sergeant, who headed the investigation, read from his statement, a 227 page document.[95] Sixteen people were named as “Persons of Interest” including the deceased’s parents who had arrived on the island the day before to visit their daughter.
As the Detective Sergeant went through the list at the inquest, he included rumour called ‘Dem Tull’; [96] outlined the facts; and what the evidence suggested. He then proceeded to dismantle it all by stating there to be ‘no factual or forensic evidence’ to connect those named with the murder of Janelle Patton or the disposal of her body at Cockpit reserve.[97] Claims and counterclaims within the community had riddled the police investigation. As the Detective Sergeant was giving his evidence, it became apparent that some of the sixteen people named were actually of little interest. They were on the list because the community nominated them as individuals who should be Persons of Interest.[98]
In the week prior to the inquest, the Norfolk Islander ran a front page notice signed by Coroner Ron Cahill notifying the date and time of the inquest. It also asked if anyone needed legal representation and if so, told them to contact the Crown Counsel.[99] According to author Tim Latham most locals went about their daily business in the belief they would not be involved: no one fathomed the intensity of the media interest, or how suffocating it would be for those named.[100] The coroner’s notice was apparently a tactic. The police were interested in who might seek legal representation and why.[101]
In his opening address, Coroner Ron Cahill stated:
In the words of Norfolk Island ‘Dem Tull’ is no substitute for evidence. In this case there are probably hundreds if not thousands of people that have suspicions and theories … [but] suspicion and innuendo is not a substitute for evidence”. [102]
The community ‘creaked under the strain’ with ‘misunderstanding, fear, anger and confusion ricocheting around the island.’[103]
Some on the list were named because the community regarded them as unsavoury, and therefore suspect. A New Zealander came to the attention of police owing to the pervasive power of Dem Tull. It was said he had a reputation as a ‘voyeur’ and ‘potential pervert’. There was no documented evidence of sexually aberrant behaviour but Sergeant Peters did tell the coronial inquest he once observed him in action; the New Zealander ‘was prone to sit and stare at attractive young women to the point where he made them feel uncomfortable…’[104] He was nominated as ‘acting strangely’ at the tennis courts on the day of Janelle’s murder.[105]
Terry Jope was one of the persons named as a ‘Person of Interest’. Jope was asked by a journalist from the Sydney Morning Herald for a comment about his dual status as ‘Person of Interest’ and potential politician, and he replied,
This Person of Interest thing is totally finished. I’d rather not have anything to do with it, frankly, I’ve tried to put it behind me and I know the people of Norfolk have. They realise what absolute crap it was.[106]
The island’s 1252 voters did not agree. Of the fourteen people who ran for office, Terry Jope achieved lowest number of votes in the proportional system (112) just 2.2 per cent of the overall vote.[107] He later suggested his reference to ‘absolute crap’ was not about the inquiry or the pursuit of justice, but about the court process of naming people who had no chance to defend themselves. He called the procedure ‘totally inappropriate’ and was horrified that he had been named.[108] Jope said,
I am sick of it, it has changed the way I think of the law. Now I have my name plastered all over the papers and people keep calling – like yourself – and I can’t answer any of this in a court. It can smash my life to smithereens and there is nothing I can do about it so I just go stumm.[109]
A fisherman was nominated ‘as a person who [might] be of interest to police’ by his former mate, who stated that he saw the fisherman driving his Toyota Landcrusier on Taylors Road around 11.45am. In the cab of the truck was a woman he believed to be Janelle Patton along with another male. The fisherman denied this and said it was a case of mistaken identity. He said that the people sitting next to him were two visiting friends from Queensland. This was confirmed by police when they questioned the visitors, who corroborated his account of his movements on the day.[110]
In the Patton case, there was insufficient evidence to charge anyone for the crime; instead, Norfolk Island was exposed to a judicial version of show and tell.[111]
Three weeks after the inquest ended an Australian politician who chairs a committee overseeing Norfolk Island made unsubstantiated claims. He said the police and the island community knew all along who killed Janelle. According to Senator Ross Lightfoot, the evidence pointed to a local male, living on Norfolk. He told the Sunday program on Channel Nine in June 2004 that, ‘People on the island know who murdered Janelle Patton, no question they know’.[112]
Such conclusions arguably have damaged the reputation of the Norfolk Island community. No evidence was produced at the inquest to support an accusation that people on the island were complicit in a cover-up. The Senator, a man who thinks Norfolk is a deeply troubled place, had added a political gravitas to a claim ‘that won’t go away’.[113]
In both the Aitken and Patton cases, the actions of the coroners and those assisting them unnecessarily damaged the reputations of people who had done nothing wrong. The need for the appearance of ‘disinterested inquiry’ and for the avoidance of ‘irreparable harm done by the original allegations’ is stressed by Young CJ in Eq in Shaw v Police Integrity Commission.[114] The examples provided show the need for best practice guidelines rather that the application of individual ad hoc approaches by those assisting coroners and coroners. The emphasis on use of police also remains a problem.
Criticism of the Role of Police
Criticism of coroners and their relationship with investigative police has been longstanding even if not recognised as legitimate by the first State Coroner Waller. The close relationship between police and coroners was recognised and criticised by Commissioner JH Wootten during the Royal Commission into Aboriginal Deaths in Custody. Commissioner Wootten was particularly concerned with police culture, its influence on police officers involved in investigating other police and the acquiescence of coroners to the police investigative findings. He was of the view that,
In most of the cases which the Commission has investigated the coronial inquiry has been largely shaped by the proceeding police investigation, although there have been recent exceptions. Often the inquest has consisted of no more than perfunctory running through a brief supplied by police. Unsatisfactory coronial inquiries have usually been the prisoner of inadequate police inquiries. If we are to continue with the system whereby deaths are investigated for the coroner by police the quality of police investigation is of tremendous importance.
In my experience as a Royal Commissioner I have become very conscious of the existence of a ‘police culture’ – a set of ingrained attitudes and ideas that are widespread in the police force and are very resistant to change. There is a very great blindness in that culture to the problems of police investigating police, and a very great reluctance to acknowledge the possibility of wrong-doing by police. Again and again deaths in custody have been subjected to no really independent investigation and the brief for the coroner has been prepared by the very officer who was in charge of the prisoner and whose conduct should have been subject of scrutiny. Even when investigation is under the control of a separate unit like the Internal Affairs Branch, the officers who come in often act as thought their function is to defend the local police and demonstrate their innocence rather than to carry out an independent investigation.
There can be great facades of independent supervision which in practice mean absolutely nothing. In one Victorian inquiry counsel for the police argued that the fact that the officer preparing the coronial brief was the officer who had been in charge of the prisoner was not objectionable, because he was under the scrutiny of a host of independent eyes – a doctor who came to examine the body, a CIB detective, the inspector in charge and the Internal Investigation Branch. One by one the relevant witnesses were called. The doctor said that he only certified the death and was not concerned to examine the body; the detective said that his only function was to take photographs; the inspector said that his task was purely administrative and not investigative; and the Internal Investigation Branch representative said that his function was to ‘oversight’, which turned out to mean that he just accepted what he was told by the officer in charge. It was almost comical at times to see how everybody passed the buck for such investigations.
It is remarkable how in police investigations of police the need is not seen for the same scrutiny of evidence as in other cases. It is elementary in general crime investigation that a suspect is interviewed quickly, and that if there are a number of people involved steps are taken to prevent them conferring and putting together an agreed version. I doubt that this has been done in any of the deaths in custody which I have investigated. In most cases police were not even interviewed but allowed to write their own statements at leisure, the leisure being any time up to a week or a fortnight before the inquest. Even where police have been interviewed, no steps have been taken to prevent prior discussion and agreement between them, and what they say has not been tested or probed.[115]
Commissioners’ Wootten and Wood are not isolated when making their criticisms of police investigations and corruption. In the case of Edward James Murray, a coronial inquest was held into his death which occurred in Wee Waa Police Station on 12 June 1981. He was 21 years of age and police allege that he was placed in a police cell shortly after 2pm and was found hanging from a bar above the cell door very soon after 3pm. He had committed no crime and was placed in preventative detention because he was intoxicated.[116]
The Royal Commission into Aboriginal Deaths in Custody examined his case and Commissioner Muirhead found in respect of the police investigation that:
The police investigation into Eddie’s death was inadequate, based on assumptions that he had committed suicide and that the officers involved were ‘reputable and dependable’. The combination of the autopsy, the police investigation and other factors including destruction of clothing, or its remnants without consultation with the family inevitably gave rise to disquiet and suspicion which are likely to persist.[117]
Kevin Waller, the first State Coroner in New South Wales[118] did not have the same criticisms of police investigations and corruption as Royal Commissioners Wood, Wootten or Muirhead. Waller when discussing his appointment as State Coroner says,
When the state government announced that it intended to introduce a new state coroner system I was well placed to undertake the position. I made myself available, and won the appointment. It was a challenge which I embraced with a measure of confidence. I was determined to find out what could be achieved.[119]
His views on the findings of the Royal Commissioners might be enlightening as he was the New South Wales State Coroner when many of the deaths in custody occurred that were examined by the Royal Commission into Aboriginal Deaths in Custody. What is a fact is that his endorsement of police investigations, especially in respect of deaths in custody, did not receive the same endorsement from Royal Commissioners.
Case Examples Police Failures – Missing Children of the Hunter
A striking example of police investigative failure arose in the cases of Leanne Goodall, Robyn Hickie and Amanda Robinson. These young people went missing in the Hunter Valley, New South Wales in the late 1970’s. The police assigned to investigate the cases were incompetent and in the case of Leanne Goodall no investigation was conducted. The failure of the original police investigations was highlighted by the New South Wales State Coroner, John Abernethy, in his findings. He stated inter alia:
. . . the inquests have been hampered by a number of factors. . . . .
These hampering factors include:
- The great passage of time which has elapsed since the girls went missing;
- Witnesses who are now deceased, missing or unavailable to give evidence;
- A lack of adequate record keeping being maintained by the original investigative team;
- Some of the original investigative documentation gathered by the investigators in 1979 now being unable to be located. This missing documentation includes statements obtained, original canvass sheets, originals or copies of police notebooks and duty books, as well as other records maintained at that time. Exhibits gathered by the investigating police have also gone missing.
- The clearly recognisable deficiencies of the original investigations including:
- the failure by investigative police to obtain written and/or signed statements/records of interview from significant witnesses in the investigation;
- a failure to obtain signed statements from persons who purported to provide alibi evidence as to the whereabouts of persons of interest on the dates in question in both the Hickie and Robinson investigations;
- the failure to invite and involve persons of interest to take part in records of interview at the time;
- the interviewing of witnesses in the presence of each other rather than individually;
- the failure to carry out follow-up inquiries in relation to important matters;
- the delay in the police opening up an investigation file relating to Robyn Hickie until the 24 April, 1979. It has to be remembered that Mr Jim Hickie attended the Belmont Police Station virtually on a daily basis between the time his daughter went missing and the time Amanda Robinson went missing; and
- the failure of the original investigation records to correctly identify which police were actually involved in the investigation at any one point of time; the respective roles and responsibilities of the police involved; when such police joined or otherwise left the investigative team; who was in charge of the investigative team at any one point of time during the investigations; who it was who was actually supervising the investigation (particularly in relation to the Robinson matter) and so on.”[120]
These cases along with others referred to provide further support for the proposition that coroners should have access to professional independent investigators who are not members of police forces. There are many more examples of failures and at the time of writing a parliamentary inquiry into the coronial system is occurring in New South Wales.
[1] Butterworths, Halsbury’s Laws of England, Volume 9(2) (4th ed, 1998) 471, 801.
[2] Cited in K Waller, Coronial Law and Practice in New South Wales (3rd ed, 1994) 2.
[3] [2001] NSWSC 46, 12, 13, 14; (2001) 51 NSWLR 312.
[4] Kirby P., Herron v Attorney-General for NSW (1987) 8 NSWLR 601, 603.
[5] R F Hunnisett, The Medieval Coroner, (1961), 118.
[6] Ibid 122.
[7] Jill McKeough, ‘Origins of the Coronial Jurisdiction’ (1983) 6 University of New South Wales Law Journal 191.
[8] Ian Freckelton and David Ranson, Death Investigation and the Coroner’s Inquest, (2006), 5.
[9] McKeough, above n 7, 193.
[10] Ibid 193.
[11] Ibid 194.
[12] Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374, 386.
[13] Examples of reduced authority are provided throughout this thesis.
[14] Bilbao v Farquhar [1974] 1 NSWLR 377, 387.
[15] Maksimovich v Walsh and the Attorney-General (1985) 4 NSWLR 318, 328.
[16] Thomas E. MacNevin, Manual for Coroners and Magistrates in New South Wales, Government Printer, 2nd edition, 1884, 13.
[17] Coroners Act 1997 (ACT), s4 (3) ‘The court is a court of record’.
[18] Coroners Act 2003 (Qld), s64(1) ‘The Coroners Court is established as a court of record.’
[19] Chippett v Thompson (1868) 7 SCR (NSW) L 349; Casey v Candler (1874) 5 AJR 358; Attorney-General(NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374.
[20] (NSW) Coroners Act 1980, s14A ‘An inquest is required to be held if the Minister or the State Coroner directs that it be held.’; s14D (1) A coroner who dispenses with an inquest must on request by any of the following persons give the person the coroner s written reasons for dispensing with an inquest: (a) the State Coroner, (b) the Minister . . .; s15 (3) A coroner shall not dispense with the holding of an inquiry into the cause and origin of a fire or explosion if the coroner has been requested to hold the inquiry: (a) in the case of a fire or explosion occurring within a fire district within the meaning of the Fire Brigades Act 1989 , by New South Wales Fire Brigades, or (b) in the case of a bush fire within the meaning of the Rural Fires Act 1997 by the Commissioner of the NSW Rural Fire Service, or (c) by the Minister or the State Coroner.
[21] (1985) 1 NSWLR 1.
[22] Ibid 16.
[23] Interim Report No. 6, 2.
[24] Interim Report No. 6, 2.
[25] MacNevin, above n 16, 18.
[26] Woolmington v DPP [1935] AC 253; Evidence Act 1995 (NSW), s 89.
[27] Director of Public Prosecutions Act 1986(NSW), ss7-9.
[28] The Times, 9 July 1982.
[29] [2002] NSWSC 425.
[30] (1990) 170 CLR 596, 616.
[31] In New South Wales the Coroners Act 1980 ss31A and 32 are relevant in this regard.
[32] MacNevin, above n 16, 13.
[33] In Queensland a coroner may commit a person to trial and issue a warrant for arrest: Coroners Act 1958, s41(1).
[34] Grassby v R (1989) 168 CLR 1, 11.
[35] For example s66 of the (NSW) Coroners Act 2009 allows a coroner to issue a warrant for the apprehension of a person who has not answered a subpoena to appear.
[36] [2003] NSWCA 77 at 33; 57 NSWLR 193. see also See R v South London Coroner, Ex Parte Thompson (1982) 126 SJ 625 (cited in Annetts v McCann at 616 by Toohey J), Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 826 per Adams J, Maksimovich v Walsh at 327-328 per Kirby P and 337 per Samuels JA, Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 at 6, Herron v Attorney General for NSW (1987) 8 NSWLR 601 per Kirby P at 608.
[37] [1999] NSWSC 820.8,9.
[38] Ibid 8.
[39] Ibid 9.
[40] Interim Report No.6, 1964, 88,89.
[41] Thomas R. Forbes, ‘Coroners’ Inquests in the County of Middlesex, England, 1819-42’ (1997) 32 Journal of the History of Medicine 375, 382.
[42] Ibid 393.
[43] Alex Castles, An Australian Legal History, Law Book Company, 1982, 83.
[44] Ibid 84.
[45] Ibid 523.
[46] See chapter 3 for discussion.
[47] Castles, above n 43, 523.
[48] Coroners Act 1898, s 3(1).
[49] Coroners Act 1898, sections 7, 8, 9, 10 and 11. Statutory provisions of 1838 ( 2 Vict. No.22, amending 1 Vict. No.3) allowed a coroner or justice of the peace to require a medical practitioner to give evidence at an inquest or inquiry.
[50] Ibid s 5; an act of suicide.
[51] ‘From and after the passing of this Act the verdict of Felo-de-se shall be and the same is hereby abolished. Provided that nothing in this Act contained shall affect the law respect to attempts to commit suicide.’
[52] Ibid s 6.
[53] Ibid s 12.
[54] Coroners Act 1901, s 2.
[55] Ibid s 3.
[56] Ibid s 4.
[57] Ibid s 5.
[58] Ibid s 6.
[59] The Coroners Bill 1980 consisted of 58 clauses that were largely procedural in nature.
[60] Hansard, 9 March 1960, 2855.
[61] Coroners Act 1912, s 19.
[62] R v Bristol Coroner; Ex parte Kerr [1974] QB 652; [1974] 2 All ER 719.
[63] Coroners Act 1985, s 4.
[64] Coroners Act 1975, s 5.
[65] Coroners Act 1996, s 4.
[66] Coroners Act 1995, s 4.
[67] See Kevin Waller, Coronial Law and Practice in New South Wales, Butterworths, 2nd edition, 1982, 184,185,186.
[68] Hansard, 25 May 1988, 553.
[69] The power of coroners to made recommendations is examined in Chapter 5.
[70] Hansard, Legislative Council, 1 June 1995.
[71] Brian Bromberger and Janet Fife-Yeomans, Deep Sleep: Harry Bailey and the Scandal of Chelmsford, (1991), 151-153.
[72] Cited in Merrilyn Margaret Walton v. Ian Donald Russell Gardiner; John Tennant Herron and John Ewan MacDonald Gill [1992] HCA 12, 10.
[73] Ibid.
[74] M.G. Sexton ‘Chelmsford and the Role of the Coroner’, Discussion Paper, 3 October 1990, 2-5.
[75] Ibid, 4.
[76] Ibid, 5.
[77] Ibid 5.
[78] Inquest into the suspected death of Kathleen Marie Aitken, Transcript, 26 August 2002, 3.
[79] Ibid 3.
[80] Ibid 16.
[81] Ibid 19.
[82] Ibid 33.55.
[83] Ibid 34.40.
[84] Ibid 35.5.
[85] Ibid 45.
[86] Ibid 47.
[87] Ibid 48.
[88] The Daily Telegraph, Tuesday, 27 August 2002, 3.
[89] Ibid.
[90] Sydney Francis Aitken v Nationwide News Pty Ltd, Transcript, 15,16.
[91] Inquest, Transcript, 8 October 2002, 1.
[92] Ibid 3.
[93] Stephen Gibbs, ‘Insight Island in the sea of suspicion’, Sydney Morning Herald, 2 February 2006, 12.
[94] Kara Lawrence, ‘Islanders say accused was calm amid storm’, Daily Telegraph, Sydney, 9.
[95] Tim Latham, Norfolk, Island of Secrets, (2005), 180.
[96] ‘Dem Tull’ is Norfolk for “They Say” meaning the voice of the community; chatter, gossip, rumour, hearsay, scuttlebutt, slander. Dem Tull is usually born from a seed of truth but like the age-old game of Chinese Whispers, the more people involved, the looser the truth becomes. In the end it becomes an exotic blend of fact and fiction. Tim Latham, Norfolk, Island of Secrets, (2005), 11.
[97] Ibid 183.
[98] Ibid 201.
[99] Ibid 177.
[100] Ibid 177.
[101] Ibid 178.
[102] Ibid 179.
[103] Ibid 178.
[104] Ibid 207.
[105] Tim Latham, Norfolk, Island of Secrets, (2005), 207, 2.
[106] Ibid 196.
[107] Ibid 197.
[108] Ibid 197.
[109] Ibid 197.
[110] Ibid 208.
[111] Ibid 15.
[112] Ibid 15.
[113] Ibid 16.
[114] [2005] NSWSC 782.
[115] J.H. Wootten, ‘Deaths in Custody’ Coronial Inquiries, at public seminar by the Institute of Criminology, Sydney, 10 October 1990, 9-11.
[116] Robert Cavanagh and Roderic Pitty, Too Much Wrong: Report on the Death of Edward James Murray, (1999), 12.
[117] J.H. Muirhead, ‘Report of the Inquiry into the Death of Edward James Murray’, Government Printer, 25 January 1989, 133.
[118] He became a magistrate in 1966 after a career in the Petty Sessions Branch of the New South Wales Department of Attorney General and Justice and became State Coroner in 1988 where he remained until 1995.
[119] K.M. Waller, Suddenly dead, Ironbark, 1994, viii.
[120] John Abernethy, NSW State Coroner, Findings, 9-10.
