Coroners speak for the dead

As a living society, we take death very seriously. In fact, regardless of whether you spend your time living large or sleeping rough in a park; if you die, unexpectedly or unusually, your body will probably be taken to the John Tonge Centre on Kessels Road at Coopers Plains. There, a forensic pathologist and a Coroner will take a professional interest in your death.

Coroners are often said to ‘speak for the dead’. In the majority of cases, the cause of death is unremarkable such as old age or disease.

However, certain deaths raise troubling questions and sometimes, larger social issues, and in certain circumstances an inquest must, or may, if it is in the public interest, be held.

The Coroner, and the parties to an inquest, often represented by us, play a critical role in unpacking such deaths in order to understand the ‘who, what, when, where and why’. But also, to examine recommendations that might prevent such tragedies from recurring.

The Coronial process and procedural fairness

The Magistrates Court is the engine room of our justice system. The Coroners Court is also a very busy and important jurisdiction, and one in which procedural fairness and human rights are critical. The jurisdiction of the Coroners Court is inquisitorial. The purpose of a coronial investigation is to establish the facts surrounding a death. However, the broader purpose of a coronial investigation, and one of its most important goals, is to contribute to a reduction in the number of preventable deaths, through the making of findings, comments and recommendations about any matter connected to the death being investigated.

When a Coroner examines the circumstances in which a person died, it is to determine causal factors and identify any systemic failures, with a view to preventing, if possible, deaths from occurring in similar circumstances in the future. The benefit of this inquisitorial process lies in the careful, independent and dispassionate testing and examination of the evidence. 

Although the coronial process is inquisitorial, the Court must afford procedural fairness to witnesses and interested parties. For example, adherence to the rule in Browne v Dunn(1893) 6 R 67 HL is paramount in ensuring procedural fairness.¹ The rule requires a witness’s credibility to be challenged in cross examination before a trier of fact is invited to reject it. Therefore, where a witness’s evidence has not been challenged during an inquest, it is not open for the Court to make an adverse finding on that witness’s “reliability and credibility”. Nor is it open for Counsel Assisting to invite the Court to do so.

This also means that interested parties are given an opportunity to respond to the making of any adverse comments and findings which a Coroner proposes to make in advance of them being made.

Human rights

Queensland’s Human Rights Act 2019 (Qld) (hereafter “HRA”) applies to the coronial process. The HRA draws on the pre-existing human rights legislation from Victoria² and the Australian Capital Territory.³ The case law and academic analysis from these jurisdictions provide the best insight into how the HRA will apply to the coronial process in Queensland. Also, the largely analogous legislation and jurisprudence from New Zealand⁴ is a useful reference for Queensland.

The HRA protects many civil and political rights derived from the International Covenant on Civil and Political Rights (ICCPR), which rights are also protected under the European Convention on Human Rights (ECHR), albeit in slightly different ways.

The HRA requires: 

• The Coroners Act 2003 (Qld) to be interpreted compatibly with human rights.

• The Coroners Court, as a public authority when acting administratively, to act in way that is compatible with human rights (the ‘substantive obligation’) and to consider human rights when making decisions (the ‘procedural obligation’).

• The Coroners Court (when acting judicially) to directly apply such rights as relate to the proceedings or the court’s function, viz., the right to life.

• That human rights may only be limited by law to the extent that a limitation is reasonable and can be demonstrably justified in a free and democratic society taking into account all relevant factors.

The right to life imposes a positive obligation to conduct an independent and impartial investigation into a death⁵ and the need to address human rights in inquest findings and recommendations.⁶

In Victoria, the application of human rights considerations in an inquest setting have led to an approach that requires Coroners to investigate potential breaches of human rights that may have caused or contributed to the death, to make findings identifying potential human rights breaches by public entities, and to make preventative comments that flow from them. Human rights considerations will also inform the appropriateness of, and content of, comments and recommendations for law and policy.⁷

In the Inquest into the Passing of Veronica Nelson, Coroner McGregor endorsed the view, taken in the United Kingdom, that the right to life requires a Coroner to give the death careful scrutiny, taking into account the actions of both state agents and the surrounding circumstances.⁸

In the Inquest into the Death of XY, Coroner McGregor again considered the issue of the application of the Charter in coronial investigations and held:⁹

“It will be clear from what follows that I consider human rights mechanisms to be a useful lens through which to view the multitude of interactions that the state and its delegates have with individuals within its jurisdiction. When one is considering whether a death was preventable, it is useful to have the human rights of the person in mind, and to consider:

a) whether one or more of the person’s human rights were engaged during the interactions that person had with the state;

b) if so, whether those rights were limited by the state during such interactions; and,

c) if so, whether the limitations are reasonable and can be demonstrably justified; or whether alternative pathways were available, that more effectively balanced the right and the limit, both in terms of assessing compatibility with rights and considering future prevention opportunities.

Those alternative pathways may identify future prevention opportunities, even if the alternatives themselves did not form part of the factual circumstances that actually occurred in this particular case, nor formed part of any chain of actual causation in the present death under investigation.”

Coroner McGregor took the view that the Charter applied to a Coroner holding an inquest:¹⁰

“Pursuant to section 4(1)(j) of the Charter, a court or tribunal is not a public authority except when it is acting in an ‘administrative capacity’. That expression is not defined in the Charter and there is no direct Australian judicial authority to my knowledge on whether the Coroners Court is a public authority under the Charter when conducting an inquest and exercising the powers in the Coroners Act 2008 (Vic) (‘Coroners Act’) to make findings, comments and recommendations. Whilst many coronial functions are administrative, a Victorian coroner is exercising judicial power when they preside over an inquest hearing, as distinct from an investigation on the papers.¹¹

That said, the Coroners Court is acting administratively when investigating a reportable death and is therefore a public authority at those times and so is required to act compatibly with human rights and give proper consideration to relevant human rights when making those administrative decisions pursuant to section 38 of the Charter.

Irrespective of whether it is a public authority, section 6(2)(b) of the Charter applies directly to the Coroners Court to the extent that it has functions under Part 2 (that is, relating to particular Charter rights), and Division 3 of Part 2 (interpretation of laws, including the Coroners Act itself). The most consistently accepted construction of section 6(2)(b) is that the function of the court is to enforce directly only those rights enacted in Part 2 of the Charter that directly relate to court proceedings.¹²

The Coroners Court most evidently has functions under the right to life (s 9 of the Charter), namely, to conduct an effective investigation into a reportable death. In addition, and in common with other courts, the Coroners Court has functions relating to the way matters are conducted, including the rights to a fair hearing and to equality before the law (ss 24 and 8 of the Charter respectively).¹³

Finally, section 32(1) of the Charter provides that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.”

Coroner McGregor was satisfied that a human rights-compatible interpretation of the power conferred by s 67(1) of the Coroners Act 2008 (Vic)is one that includes investigating breaches of human rights that might have caused, or contributed, to the deceased’s passing.¹⁴ His Honour took the view that:

“Consistent with that view, interpretation of the powers to comment and make recommendations pursuant to sections 67(3) and 72 of the Coroners Act, respectively, encompasses powers to make recommendations and comments in relation to human rights issues connected with the death”.¹⁵

Coroner McGregor’s conclusions as to the effect of the Charter upon the coronial function are, with respect, correct. They highlight the need to approach our work in this jurisdiction through a human rights lens.

Conclusion

It is common for experienced criminal lawyers to act for an interested party at an inquest. That is because we are trained at examining and resolving complex factual issues that might arise because of a death. Representing bereaved families is a privilege.

Understandably, they place great emotional weight on the inquest process. For them, an inquest can be a therapeutic process having a ‘truth and reconciliation’ effect. In other cases, we are asked to act for a person of interest or someone who may be at risk of criminal prosecution. Our role in acting for this type of party is not to present a case but rather, protect their interests.

Regardless of the client or the case, an understanding of the Coronial process and the interplay between the Coroners Act 2003 (Qld) and the HRA is critical.

Following the introduction of legislative human rights protections in Victoria in 2006, the uptake of human rights litigation was slow. In Queensland, there has been a similar apprehensiveness since the introduction of our legislation in 2019.

However, when arguments are properly made before Coroners there is an important opportunity to embrace the HRA and thereby effect the delivery of findings which will prevent future deaths but also aid and guide the legal profession who are tasked to litigate these matters.

Before the HRA was enacted, Queensland lacked any blanket legislative protection of basic human rights.¹⁶

However, there are many common law and statutory protections which Courts regularly engage with. As such, the requirement to consider the rights enunciated in the HRA will not be a novel exercise for a judicial officer or legal representative.

However, in a busy Court, it will initially take some time and patience. The experience in jurisdictions like New Zealand, who have had legislative protections of human rights for many years, is that it will eventually become a part of the fabric in the administration of justice, and ultimately will ensure that future deaths are preventable by addressing potential breaches of human rights.

Footnotes
¹ Burke v Corruption and Crime Commission (2012) 289 ALR 150; [2012] WASCA 49 at [182] and [183], cited with approval by Dalton J (as her Honour then was) in Davis v Commissioner of Police [2016] QCA 246 at [36].
² Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).
³ Human Rights Act 2004 (ACT).
⁴ New Zealand Bill of Rights Act 1990.
⁵ The findings into the death of Tanya Louise Day with Inquest, Coroners Court of Victoria; Coroner English, 9 April 2020 (Day Inquest)[153]; Inquest into the deaths of Yvette Booth, Adele Sandy and Shakaya George, Coroners Court of Queensland, Northern Coroner, 30 June 2023 (RHD Inquest) [132].
⁶ Inquest into the Passing of Veronica Nelson, Coroners Court of Victoria, Coroner McGregor, 30 January 2023 (Nelson Inquest) [78]; RHD Inquest [132].
⁷ Nelson Inquest, Findings [76]-[78], [80]-[81], inhuman and degrading treatment [417], [677], life [416], [654], equality [654], humane treatment when deprived of liberty [416], liberty [390], failure to give proper consideration to human rights [274], [276], [335] Appendix A [34], [39], [41], Appendix B (full list of findings including as to breaches of human rights); Appendix C; Day Inquest [80]; J Hunyor, “Human Rights in Coronial Inquests” (2008) 12(2) Australian Indigenous Law Review 64; B Chen & A Mackay, ‘The Nelson inquest: Relevance of the Victorian Charter to the coronial function of preventing deaths in custody” (2023) 48(4) Alternative Law Journal 245, 250.
⁸ Inquest into the Passing of Veronica Nelson, Coroners Court of Victoria, Coroner McGregor, 30 January 2023 at [31]. See also R v Her Majesty’s Coroner for the Western District of Somerset; Ex parte Middleton [2004] UKHL 10.
⁹ The findings into the death of XY with inquest, Coroners Court of Victoria, Coroner McGregor, 19 June 2024 at [51] – [52].
¹⁰ Ibid at paragraphs [55]-[59].
¹¹ Cemino v Cannan [2018] VSC 535, [92]; See also: Inquest into the Passing of Veronica Nelson, Coroners Court of Victoria, Coroner McGregor, 30 January 2023, Appendix A.  An appeal against this decision on a different point was subsequently dismissed: Runacres v The Coroners Court of Victoria [2024] VSC 304 (11 June 2024).
¹² Cemino v Cannan at [110]; De Simone v Bevnol Constructions (2009) 25 VR 237, 247 at [52] (Neave JA and Williams AJA); Kracke v Mental Health Review Board (2009) 29 VAR 1, 63 at [250] (Bell J); Victoria Police Toll Enforcement v Taha (2013) 49 VR 1 at [247]-[248] (Tate JA); Matsoukatidou v Yarra Ranges Council [2017] VSC 61 (‘Matsoukatidou’) at [32]; DPP v SL [2016] VSC 714 at [6]; Application for bail by HL [2016] VSC 750 at [72] (Elliot J); DPP v SE [2017] VSC 13 at [12] (Bell J); Harkness v Roberts; Kyriazis v County Court of Victoria (No 2) [2017] VSC 646 at [21].
¹³ If a right applies directly to a court via section 6(2)(b), when assessing whether the court has acted compatibly with the right, section 7(2) should be applied: Matsoukatidou at [58]; Victoria Police Toll Enforcement v Taha (2013) 49 VR 1 at [250].
¹⁴ The findings into the death of XY with inquest, Coroners Court of Victoria, Coroner McGregor, 19 June 2024 at [59].
¹⁵ Ibid.
¹⁶ The Queensland Anti-Discrimination Act 1991 provides protection against discrimination, sexual harassment, vilification, victimisation and other objectionable conduct.  However, this protection is limited to individuals with certain characteristics or attributes, and only applies in certain areas of public life.  It is also framed as prohibitions (e.g. a person must not discriminate) rather than creating positive obligations on public bodies.