Lecture 16 LR

Coronial Jurisdiction: An Overview

• Acknowledgement of Country

  • Situated on the lands of the Wujuk and Bindjerab people of the Noongar nation.

  • Respects to their culture, leadership, elders past and present.

  • Acknowledgement that the land was never ceded.

• Guest Lecturers: Chloe Wood and Georgia Papillia from the Aboriginal Legal Service of WA (ALSWA).

  • Chloe Wood: Managing Lawyer.

  • Georgia Papillia: Human Rights Unit.

About Aboriginal Legal Service (ALS)

• Focuses on state government accountability.

  • Assists with complaints and litigation related to treatment by police, prisons, and other government departments.

• Coronial practice: assisting families of Aboriginal people who have died.

  • Coronial investigations and inquests.

  • High volume of inquests involving deaths in custody or with police involvement.

  • Represents families of anyone whose family member has died unexpectedly.

    • Missing persons, suicides, unexpected deaths in a medical context.

• One of the few legal services in WA that offers this assistance for free.

• Recent focus on complex coronial inquests.

  • Police shooting.

  • Death of a young person in detention.

Overview of Coroner's Court

• Specialist court established to investigate certain types of deaths.

• Governed by the Coroner's Act 1996 (WA).

• Inquisitorial function: Determines the cause and manner of deaths.

  • Considers ways to prevent similar deaths in the future by making recommendations.

• Fact-finding function: Establishes how a person died and identifies prevention measures.

  • Differs from criminal jurisdiction.

  • Not aiming for criminal guilt or apportioning liability.

• Five dedicated coroners in WA.

  • State Coroner (Head Coroner).

  • Magistrates in regional areas can act as coroners.

Coronial Investigation Timeline

• Initial attendance at the scene of death.

  • Doctor, paramedics, or police.

• Suspicious circumstances: Scene secured, Coronial Investigations Unit informed.

• WA Police divisions investigate the death, compile a report.

• Outcomes:

  • Administrative finding (investigation on papers only).

  • Inquest (court hearing with witnesses).

  • If no suspicion, death certificate is issued.

Reportable Deaths

• Deaths that fall within the Coroner's jurisdiction.

  • Unexpected, unnatural, violent deaths, or deaths arising from injury.

  • Deaths during or as a result of an anesthetic.

  • People held in care.

  • Deaths caused or contributed to by police.

  • Deaths where the person's identity is unknown.

• Examples:

  • Suicides, motor vehicle accidents, accidental deaths (e.g., workplace), adverse events in a medical setting, other unexplained deaths.

• Definition of "people held in care".

  • Includes people in police custody, prison, involuntary patients in psychiatric institutions, young people in detention, children in the care of the Department of Communities.

  • Requires some level of compulsion or involuntariness to be in care.

    • Excludes voluntary patients in hospitals or people in nursing homes.

• Section 17, Coroner's Act: Obligation to report a reportable death to a coroner.

  • Doctors or police must report.

• Section 18, Coroner's Act: Person reporting must give the coroner any information to aid the investigation.

Questions and Discussion

• Unexpected deaths and medical negligence.

  • Doctors fill out forms for Deaths that may be reportable.

• Family members reporting a death.

  • Family members can report if they believe there are reasonable grounds.

  • The Coroner's Court decides if it falls under their jurisdiction.

• Lobbying the coroner.

  • Family can approach the coroner and request information.

  • Ultimately, the coroner will determine what actions to take.

• Recommendations by the coroner.

  • Direct recommendations to public bodies to reform laws and change policies.

  • No enforcement powers; government is expected to enforce them.

• Follow-up reports.

  • The Office of the Inspector of Custodial Services (OICS) reviews coronial recommendations.

  • Asks the government to provide a formal response.

• Lack of mandatory reporting requirements is a major area needing reform.

• Significant reform example: Requirement to include fences around pools after a series of coronial inquests.

• Power and jurisdiction of the coroner.

  • Primary function: Find out why a person has died and the manner and cause of death.

  • Secondary function: Making recommendations.

  • Cannot impose particular requirements on government agencies.

• Interaction with other legal processes.

  • Coroner refers matters to disciplinary bodies (e.g., ARPA, WorkSafe).

  • Coronial investigation often deferred until criminal or WorkSafe investigations are completed.

• Coroner is constrained by their functions under the Coroner's Act 1996 (WA).

Coronial Investigation Process

• Investigation into every reportable death.

• Administrative findings:

  • Investigation on the papers.

  • Findings are available to the family but not publicly published.

• Inquest:

  • More comprehensive investigation with a court hearing.

  • Witnesses provide oral evidence.

  • Followed by written findings, more comprehensive than administrative.

• Section 22, Coroner's Act:

  • Mandatory inquests for deaths in custody, deaths caused or contributed to by police, or other deaths of persons held in care.

  • Mandatory for missing persons where there is reasonable cause to suspect they have died.

• Discretion to hold an inquest.

  • Belief it is desirable due to unanswered questions, public interest, or public health and safety.

• Any person can request an inquest; must provide written reasons if refused.

  • Right to apply to the Supreme Court for review of the decision.

Benefits of an Inquest

• Open and public investigation.

• Opportunity to call and question witnesses.

• Power to compel witnesses to attend and answer questions.

• Publication of findings can resolve uncertainty or conflict of evidence.

• May uncover systemic defects or risks.

• Opportunity to make comments and recommendations to prevent similar deaths.

Coroner's Powers

• Powers to obtain evidence in an investigation:

  • Restrict access to the place of death.

  • Enter, inspect, and take possession of property.

  • Direct post-mortem or exhumation.

• Powers in relation to inquests:

  • Summon a person to attend, provide evidence, or provide documents.

  • Inspect and copy documents.

  • Order witnesses to answer questions or give evidence on oath.

  • Give any directions or do anything reasonably necessary.

Fact-Finding Exercise

• Not a criminal or civil court aiming to apportion guilt or liability.

• Rules of evidence do not apply.

  • Section 41, Coroner's Act: Coroner is not bound by the rules of evidence.

  • Can be informed and conduct an inquest in any manner the coroner sees fit.

• Ensures witnesses can give full evidence without fear of self-incrimination.

• Coroner can consider relevant information, even if not given in evidence.

• Confined within the functions prescribed in the Coroner's Act, particularly Section 25.

What the Coroner Should Look For

• Must find, if possible:

  • Identity of the deceased.

  • How the death occurred.

  • Cause of death.

  • Any other particulars needed to register the death.

• Distinction between how a death occurred and the cause of death:

  • Cause of death: Factual finding of the mechanism of the death (e.g., drowning).

  • How the death occurred: Broader, the manner in which the deceased happened to die (e.g., homicide, accident, natural causes).

• May comment on any matter connected with the death:

  • Public health or safety.

  • Administration of justice.

• Where the death is a person held in care:

  • Must comment on the quality of supervision, treatment, and care they received.

• Must not frame a finding to determine any question of civil liability or suggest guilt.

• Focus of evidence in inquest hearings: How death occurred and cause of death.

• Deaths in custody often involve questions around the quality of supervision, treatment, and care.

• Inquests also focus on matters relating to public health, safety, or the administration of justice.

Role of Parties at an Inquest

• Coronial inquests are less adversarial.

• The role of lawyers is different compared to criminal trials.

• Parties:

  • Coroner: Assisted by Counsel Assisting.

  • Counsel Assisting: A lawyer assigned to assist the court in their processes for coordinating the inquest.

    • Employment: The Coroner's Court employs lawyers who fill permanent Counsel Assisting roles, and they also brief independent barristers for bigger inquests.

    • Functions: Responsible for preparing the coronial brief of evidence, determining which witnesses to call, providing an opening statement, leading witnesses, and working closely with the coroner.

  • Interested parties:

    • Appear at the inquest.

    • Families and other involved parties, such as government departments and private individuals (e.g., doctors & nurses).

  • Role of counsel for a family:

    • Assist the family through the coronial process.

    • Ensure family's concerns are conveyed to the court.

    • Advocate for a statement to be put to the coroner or for them to be called as a witness.

    • Request additional evidence or witnesses.

    • Seek recommendations and findings on their behalf.

  • Counsel for other parties act in those parties' interests.

    • E.g., Department of Justice represented by the State Solicitor's Office in deaths in custody. Individuals can be represented separately.

      • A doctor or nurse who is separately represented to the Department of Health or the particular hospital.

Outcomes from the Coronial Process

• Potential outcomes: Findings about manner and cause of death, plus additional actions a coroner might take.

• Adverse comments: Comments to the effect that something has gone wrong or someone has done something incorrectly.

• The Coroner can not frame any finding in any way that suggests criminal guilt or liability, but they can make these adverse findings and comments.

• Section 44, Coroner's Act: An interested person must be given a notice and be able to present their version of what had happened before the coroner can make negative remarks about them.

• Recommendations: Coroner can make recommendations on any matter connected with a death.

  • Including public health or safety, the death of a person in care, or the administration of justice, and inform any involved agencies to follow up.

• Types of recommendations:

  • Changes to policies and practices.

  • Allocation of more resources to address specific issues.

  • Provision of more training to avoid similar issues occurring in the future.

• Biggest issue: Recommendations are not enforceable, and there is no central mechanism for acquiring reporting back on them.

• Referral to the Director of Public Prosecutions (DPP):

  • If the Coroner believes that an indictable offence has been committed regarding the death.

• Referral to the Commissioner of Police:

  • If the Coroner believes a simple offence has been committed regarding the death.

• Function of coronial inquest where charges will not be laid:

  • To determine whether any additional evidence is available. The inquest functions in a role to determine and find facts that are complementary to the criminal process.

• Ability under Section 50 to refer people to a disciplinary body.

  • E.g., referring to the Australian Health Practitioner Regulation Agency or the Medical Board of Australia.

  • It is only necessary for the Coroner to form an opinion for having jurisdiction to inquire into that matter.

Discussion About the Coroner's Court and Process:

• Discussed a Wills and Estates case.

• Not a question for the content in this lecture, more a question for a Wills and Estates lawyer.

• If people don't have the Coroner's Court there wouldn't be a body that would be able to investigate people's deaths.

• Civil liability and criminal jurisdiction is quite narrow when coming in contact with these cases.

• "Those bodies would be criminally and civil investigated in to the deaths there may have been things still go wrong with that

• The Bondi Junction Killings and The Utility of a Coronial Inquest:

• "What's the utility of a coronial inquest?"

• The family still wanted to be able to know what had happened on that day to give them closure as a family.

Case Study 1: Death of Ms. Dhu

• Ms. Dhu was arrested for unpaid fines and taken to South Hedland Police lockup.

• Died less than 48 hours after being taken into custody.

• Complained of being unwell and was taken to Hedland Health Campus for assessment.

  • Medical staff provided police with a signed fit to be held in custody form.

• Took her for additional checkups and they also issued the form to allow her to stay in Police custody.

• Passed away after paramedics were alerted to her serious medical condition.

• The State Coroner found that she died from staphylococcal septicaemia and pneumonia in a woman with osteomyelitis complicating a previous rib fracture and that death occurred by way of natural causes.

• The coroner remarked that:

  • issues relating to systemic racism contributed towards her death and that there might have been some assumptions made in relation to Aboriginal persons regarding her health.

• The coroner made very extensive recommendations that contributed to some very significant changes in Law and Order.

  • Training and Management with Police Lock ups.

  • Amendment to make fines, Penalties and Infringement notice enforcement act to remove the option of imprisonment for unpaid fines.

  • Custody Notification Services to be able to let a Lawyer provide initial legal advice and conduct a welfare check to raise any issues that the person has been consented to with the police.

• One of the doctors who treated Ms. Dhu was also subject to a disciplinary proceeding by the Medical Board of Australia and found guilty of professional misconduct by the State Administrative Tribunal and they were fined $30,000.

Case Study 2: Casuarina Suicides Inquest

• Took place in 2019 and represented family members of two of the deceased people.

• Coroner found that each of the deaths had occurred by way of suicide.

• The inquest looked at the management of prisoners at risk, the risk factors impacting on prisoner management, and the strategies and tools employed to address those factors.

• The coroner made eight recommendations including:

  • Increase Mental Health Staff and Support at Casuarina Prison.

  • Increase the amount of ligature minimised cells at the prison.

  • More training for staff to be able to assist with prisoners with a mental health condition.

• Albany Prison continued and discussed the same issues that were discussed at Casuarina Prison.

• There is always a lot of difficulty for the counselling staff due to not enough Mental health support and Staff.

Big Current Inquests

• Inquest into the death of JC:

  • A 29 year old Ngalawonga Yamaji Matu woman shot by a police officer.

  • The officer was charged and acquitted of murder and manslaughter.

  • Then the coronial inquest got underway.

  • The hearing looked at a number of different issues including:
    * WA Police use of force policies procedure and training in response to incidents like this.
    *Adequacy of mental health response and the role of WA police as first responders.
    *Adequacy of cultural awareness competency and training in the WA Police.

• Sister represented by the JC lawyer who works with them on any concerns with the family.
  *Expected in 2024 to be looked at regarding the Police Powers and Procedures.

• Death of Cleveland Dodd:

  • A 16 year old Yamaji boy who was being held on remand at Unit 18 at Casuarina Prison. It was established that he had self-harmed in his cell and was later found passed away in the hospital.
    *Considered as the first Youth person to have passed away in 2024 to be an expedited case for review.
    *Looked at the issues within detention facilities and how youth detention can be run.
    *Abitlity to comment on the quality of care, treatment and supervision of the person that has passed away.

Coronial Reform:

• We have already discussed the fact that there maybe any strong enforcement procedures around the Coroner's Court.

• The Law Reform Commission of WA conducted a comprehensive review of the Coroner's Court in 2012.

• There were 113 recommendations made that have only been only 15 implemented.

• The main discussion had been around the creation of the need for reporting when things had been actioned upon.

• Improvements to administrative practices and procedures within the Coroner's Court to better engage with legal representatives to ensure they're kept of reforms of developments in matters, received briefs with adequate time to prepare and are consulted about listing dates.

• Improvements to support Aboriginal Families and cultural awareness training for all Coronial Court Staff.
  *Expanding the definition of reportable deaths. *Expanding and clarifying the definition of a person in care.

• Improve investigation procedures.

Question About How To Start:

• Can start assisting council for the purpose of starting to understand how this is done, and that people can be briefed in specific roles

• Get into a Legal Aid program to get a program started through the court.

• Work with University's to get into the correct volunteer programs

• Macusker Institute based at UWA: they place interns with us.

• There are always positions for lawyers to apply for in the correct regions.

Final Notes:

• It is not easy for a Lawyer to play in decisions in dictating particular policy decisions, they can guide and change things but ultimately cannot make policy decisions. There has to be a line between the two due to the government decision and parliament.

• The purpose of coronial reform: It is a legal and social content to their practice and to guide and change things for the practice of law.