Coronial Inquests

A coroner in Western Australia has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death.

A reportable death is defined as a Western Australian death falling within any of the 10 categories specified in the definition.

The coroner’s authority to investigate a death by conducting an inquest is sourced from section 22 of the Act. A coroner is not obliged to conduct an inquest into all reportable deaths. The coroner must conduct an inquest if the death appears to be a Western Australian death falling within any of the six categories specified under section 22(1).

A coroner with jurisdiction to investigate a death may also hold an inquest if the coroner believes it is desirable.

If a person asks a coroner to hold an inquest into a death which a coroner has jurisdiction to investigate, the coroner may –

1. Hold an inquest or ask another coroner to do so; or
2. Refuse the request and give reasons in writing for the refusal to the person and to the State Coroner within a reasonable period after receiving the request.

In determining an application, it is reasonable for the coroner to consider the relevant information that an inquest might be expected to yield, and the information that is otherwise ascertainable.

The coroner is entitled to weigh any benefits which an inquest might produce against any disadvantages, which an investigation (or further investigation) short of an inquest might entail.

The findings that a coroner investigating a death must find, if possible, –

1. The identity of the deceased; and
2. How the death occurred; and
3. The cause of death; and
4. The particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998 (WA).

How the death occurred, under s 25(1)(b), confers on the coroner jurisdiction to find by what means and in what circumstances the death occurred. How death occurred necessarily involves questions of causation. A coroner is not to make findings of causation or contribution relating to matters too remote. An inquest cannot properly be an exercise in endless regression.

As Deane J said in March v Stramare:

Thirdly, the mere fact that something constitutes an essential condition (in the ‘but for’ sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a ’cause’ of that occurrence as a matter of either ordinary language or common sense.  Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a ’cause’ of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation.

The extent of permissible regression cannot be easily identified. It will sometimes be necessary to delineate between an act or omission which is a cause from background circumstances which are non-casual conditions, albeit necessary conditions in a strict counterfactual sense. The inquiry is limited by common sense notions of where a line must be drawn in terms of remoteness, but for regression.

In respect of the obligation to make a finding as to ‘the cause of death’ Buss JA (as his Honour then was) in Re State Coroner; Ex parte Minister for Health (Martin CJ and Miller JA agreeing) said:

The coroner, in finding, if possible, “the cause of death”, is not confined or restricted by concepts such as “direct cause”, “direct or natural cause”, “proximate cause” or the “real or effective cause”. Similarly, a coroner is not confined or restricted to a cause that was reasonably foreseeable. See WRB Transport v Chivell (1998) 201 LSJS 102 at [20] (Lander J, Mullighan J agreeing).

…

Section 25(1)(c) does not, however, authorise a coroner to undertake a roving Royal Commission for the purpose of inquiring into any possible causal connection, no matter how tenuous, between an act, omission or circumstance on the one hand and the death of the deceased on the other. See Re Doogan; Ex parte Lucas-Smith (2005) 158 ACTR 1 at [28] per Higgins CJ, Crispin and Bennett JJ.

It will be necessary, in each inquest, to delineate those acts, omissions and circumstances which are, at least potentially, to be characterised as causing or a cause of the death of the deceased. This is to be undertaken by applying ordinary common sense and experience to the facts of the particular case. See March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ; at 522 per Deane J; WRB Transport (at [21]); Saraf (at [18]-[19]); Doogan (at [29]).

A statement that a particular act, omission or circumstance did not cause a deceased’s death is not a finding as to “the cause of death”. See Keown v Khan (at [13]); Hurley (at [23]).

A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.

The power to comment arises as a consequence of the obligation to make findings under section 25(1). It is not a separate or distinct source of power enabling a coroner to enquire for the sole or dominant purpose of making comments. Accordingly, the power to comment is ancillary to the role of the coroner to make findings.

In Hamsworth v The State Coroner, Nathan J stated:

The power to comment, arises as a consequence of the obligation to make findings:  see s 19(2).  It must be comment ‘on any matter connected with the death’.  The power to comment and also to make recommendations pursuant to s 21(2) are inextricably connected with, but not independent of the power to enquire into a death or fire for the purposes of making findings.  They are not separate or distinct sources of power enabling a coroner to enquire for the sole dominant reasons of making comment or recommendation.  It arises as a consequence of the exercise of a coroner’s prime function, that is to make ‘findings’.

In Chief Commissioner of Police v Hallenstein, Hedigan J said that a coroner should not inquire into a death substantially to enable comments to be made.

The opportunity to consider policies and procedures to ensure the security, safety and welfare of the public is not a sufficient reason to order than an inquest be held.

The ultimate purpose of a coroner exercising their function under the Act is to inquire into a particular death. It is that particular death which is the focus of any inquest, and not broader matters unconnected to the death.

Where appropriate to make comments or recommendations to advance the interests of public health and safety, it may need to relate to the general considerations of the policies and principles that should be applied to the relevant circumstances.

Any comments on public health and safety from an inquest would need to relate to wider findings or recommendations on public health and safety, not just the specific individual circumstances of the deceased.

In the event a coroner refuses to hold an inquest, and within 7 days after receiving the notice of the refusal, a person may apply to the Supreme Court for an order than an inquest be held.

It appears that unfortunately there is no general provision in either the Act or in the Interpretations Act which gives the Court discretion to extend the time limits (see Re MRG (decd); Ex parte Curtin (1997) 94 A Crim R 88, 93-94). The application must be filed within the 7 days of receiving the notice of refusal.

These applications are very rare and very difficult to successfully obtain.

The Supreme Court may make an order that an inquest be held if it is satisfied that it is necessary or desirable in the interests of justice.

The criterion for a court to order an inquest under section 24(3) of the Act is that it is satisfied that it is necessary or desirable, in the interests of justice, that an inquest be held. The court is not bound by a coroner’s decision, nor is it obliged to find error in that decision.

The power is a broad discretionary power that must be exercised sparingly. The decision to exercise the power involves a discretionary value judgment. This discretion is informed by the statutory objects of the legislation and the underlying policy considerations in the coroner’s statutory functions.

In determining an application, the court may have regard to the scope and focus of a potential inquest. The scope of an inquest is affected by the findings that a coroner must, if possible, make under section 25 of the Act.

To satisfy the court of the need for an inquest, it is not necessary to show that an inquest would produce findings different to those previously made by the coroner.

Accordingly, to satisfy the court, it will be sufficient to establish that there is a real or realistic possibility that an inquest would produce a different outcome.

In relation to a second inquest, still applying in relation to a refusal to hold an inquest, in Veitch v The State Coroner, Beech J said with respect to the analogous section 14(1) of the repealed Coroners Act 1920 (WA):

It has been held in Western Australia that, in an application under that section, in order to satisfy a court that it is necessary or desirable in the interests of justice that another inquest should be held (when one has already been held) it is not necessary to establish that a different verdict will probably be arrived at on a second inquest. Rather, it will be sufficient if there is a possibility that the result of a second inquest will be different from the first. There must be something more than mere speculation: Attorney General v McCann (Unreported, FCt SCt of WA Library No 940816, 11 April 1994) 13 – 15; Re Zapelli; Attorney General for the State of Western Australia [2000] WASC 183 [11], [16].

An application to order an inquest must be supported by a body of additional evidence.

In Herron v Attorney General of NSW, McHugh JA said:

In the forefront of matters to be considered in determining whether it is in the interests of justice to hold a fresh inquiry is the existence of a reputable body of evidence which, if accepted, would indicate that the original finding as to the manner and cause of death … was erroneous. The public interest requires that the finding as to the manner and cause of death … if it be an error, should be corrected.

However, it is not necessary that the evidence relied on be ‘fresh’ in the sense of ‘fresh evidence’ for the purposes of appeals. Nonetheless, the new evidence relied upon must reach a threshold of some degree of cogency. If the evidence reaches this threshold, the court must determine whether the additional material would alter the decision previously reached. That involves considering whether the additional material is capable of bearing upon the previous decision not to hold an inquest.

The broad discretion conferred means that the court’s determination of an application to order an inquest may involve considering several factors.

In Mullaley, Le Miere J had regard to the following relevant factors in determining that an inquest was not necessary or desirable in the interests of justice:

1. whether the inquest was likely to elicit new evidence;
2. whether the inquest was likely to find new facts or clarify the facts around the deceased’s death;
3. the fact that the function of an inquest is to find facts around the death, not to attribute criminal or civil liability or blame for the death beyond findings necessary for the finding of ‘how death occurred’;
4. the likelihood that a coroner would find that the failure of police to protect the deceased by taking him into care and protection contributed to the deceased’s death;
5. the matters and circumstances which the plaintiff wished the coroner to investigate, in the context of the entirety of the circumstances leading to the death;
6. whether there was doubt as to the cause of death;
7. whether the inquest was requested for the sole or substantial reason of the coroner making comments or recommendations;
8. and the inconvenience an inquest will cause to those required to give evidence about a traumatic incident, and the hurt and pain to some of them;
9. the expense of holding an inquest;
10. the importance of finality.

Implicit in these factors is that an inquest should only be ordered when it is in the public interest to do so.

It is not accepted that because an inquest is more formal and reliable fact-finding procedure it should be preferred to an administrative investigation.

Although an inquest may generally be more exacting than an administrative investigation (for example, through the power to call witnesses and test evidence) the quality of fact finding undertaken for an administrative finding should not be discounted as unreliable.

Errors must be material to provide a basis for ordering an inquest. New evidence that an opposite finding of fact (find of an erroneous fact) would still have to show a different outcome.

An invitation to the coroner to conduct an inquest to find some explanation for factors that may have contributed to the death, in the absence of any real evidence that an inquest would be capable of providing the explanations they seek.