In 2022, the State Coroner issued the Protocol in relation to deaths in custody of First Nations people. Its purpose is to implement the recommendations relating to coronial processes arising from the Royal Commission into Aboriginal Deaths in Custody. In particular, it aims to ensure that, for First Nations families, coronial processes do not perpetuate cycles of grief and loss.

The Protocol requires investigations and inquests involving First Nations deaths in custody to be carried out in a timely manner. Importantly, there is to be early engagement with First Nations families to explain coronial procedures, keep them updated on an investigation/inquest’s progress, and ensure their concerns are understood and examined. Importantly, the Protocol also aims to ensure that inquests are conducted in a culturally appropriate manner, in consultation with the family.

Although the Protocol is directed mainly to deaths of First Nations people in custody, its content is designed to guide coroners’ response in relation to all reportable First Nations deaths.

For all reportable deaths of First Nations people, coroners are strongly encouraged to make early contact with a member of ACISP based in Lidcombe. ACISP officers will generally make immediate contact with First Nations family members, and are skilled in providing ongoing support to these families. ACISP officers are also an invaluable support to coroners in providing advice regarding family concerns and how the inquest (if there is to be one) can be conducted in a manner that is culturally appropriate to the deceased person’s family and community.

Section 6 defines a “reportable death” as:

Section 35 requires that a person who has reasonable grounds to believe that a reportable death has taken place must make a report to a police officer, a coroner or assistant coroner as soon as possible.

There is no longer a requirement that a deceased person must have seen a medical practitioner within six months of their death, to allow for a doctor to issue a death certificate. For deaths occurring on or after 20 January 2020, a doctor may issue a death certificate without having seen the deceased within a prescribed timeframe.

However a doctor is prohibited from issuing a death certificate in respect of a reportable death: s 38. Any death certificate issued in respect of a reportable death is invalid.

The definition of “health-related procedure” is broad. Section 6(3) states that it may be a medical, surgical, dental or other health-related procedure. It includes the administration of anaesthetic, sedatives and other drugs.

Whether a death is reportable following a health-related procedure involves considering the following:

Ordinarily, reports of deaths are prepared by police officers in a Form P79A “Report of death to the coroner” (Form P79A). This report summarises the known details of the deceased person, identifies the next of kin, and sets out the circumstances of the death or the discovery of the body. It should advise whether or not the deceased person is of Aboriginal and/or Torres Strait Islander descent. It will also provide preliminary advice that the matter is, or is not, one which falls within s 24 concerning children and persons with a disability.

Usually the Form P79A also informs the coroner whether a medical practitioner has been treating the deceased person in recent times, and the deceased person’s known medications. It will also usually outline the preliminary views of the police as to whether the circumstances of the death are suspicious.

As the Form P79A is prepared at a very early stage, subsequent investigations may provide additional information contrary to information contained in it.

If a person dies in hospital, in addition to the Form P79A, the coroner will be provided with a NSW Department of Health — Form A “Report of death of a patient to the coroner”. It provides an opinion as to the cause of death.

The suspected death of a missing person is reported in a Form P79B “Report of suspected death to the coroner” which is prepared by police. This form sets out the missing person’s particulars and the relevant information concerning their disappearance, the attempts made to locate them, and the basis on which death is suspected by police.

A coroner has jurisdiction when:

The death in question must have occurred within the last 100 years: s 19. The deceased must have a sufficient connection with NSW: s 18. A coroner’s jurisdiction is not dependent on a report being made under s 35: see s 20.

The State Coroner and Deputy State Coroners, called “senior coroners” in s 22, have exclusive jurisdiction in respect of deaths:

Deaths of persons in aged care homes are not of themselves included in s 24.

Whether a facility is “specialist disability accommodation ” within the meaning of s 24(3), is usually disclosed in the Form P79A.

The reporting requirements in relation to deaths in custody are contained in s 37.

The State Coroner has also directed that the following matters be transferred to the State Coroner at Lidcombe (see State Coroner’s Bulletin No 23 of December 2022):

Before a regional coroner makes a decision to set a matter down for inquest or inquiry, they must consult with the Duty Coroner: see State Coroner’s Bulletin No 24 of February 2023. The Duty Coroner can be contacted by phone, or via email.

From the time a coroner assumes jurisdiction in a case, which is usually when a death is reported, their investigation is focused on answering the following primary questions:

These questions may lead to other questions relating to health or safety issues, but they are the starting points for all coronial proceedings relating to deaths.

“Cause of death” refers to the “real cause of death … not the mode of dying”, and not the terminal cause — in the end we all die because our hearts and brains stop functioning: Ex p Minister of Justice; Re Malcolm [1965] NSWR 1598.

“Manner of death” refers to the circumstances of the death, that is, the way in which it came about. In seeking to answer this however, coroners are cautioned against undertaking an overly broad inquiry. R v Doogan; Ex p Lucas-Smith (2005) 158 ACTR 1 at [28] states that an inquest is not a:

See also Harmsworth v State Coroner [1989] VR 989.

The primary distinction to be made between the two concepts is that cause of death is a physiological concept, whereas manner of death relates to the circumstances in which a death took place. J Abernethy et al, Waller’s Coronial Law and Practice in NSW, 4th edn, LexisNexis, Sydney, 2010 (Waller) at [81.16] provides the following illustration of the distinction:

Section 89(1) sets out the post mortem investigation directions that a coroner may make. Examples of the directions that may be made include:

Although s 90(3) authorises the retention of small samples of certain bodily tissue, the directions which s 89 authorises do not include the power to direct that a whole organ be retained and examined. There will be cases where, for example, the medical investigator (usually a forensic pathologist) wishes to retain and examine a deceased person’s brain. Section 90(5) empowers the coroner to direct this, provided they are satisfied this is desirable or necessary to assist the investigation into the manner or cause of death. A coroner needs to consider this step carefully, given its very invasive nature. Further, senior next of kin must be notified of such an order as soon as reasonably practicable: s 90(6).

Note:

Section 88A(1) empowers a pathologist to undertake the following non-invasive preliminary examinations without a coronial direction, set out in s 88A(2):

• visual examination (including a dental examination)

• reviewing personal and health information

• taking and testing samples of bodily fluid, including blood, urine, saliva, vitreous humour and mucus (which may require an incision be made)

• imaging of the remains, including by way of computed tomography (CT scan), magnetic resonance imaging (MRI scan), x-rays, ultrasound and photography

• taking and testing samples from the surface of the remains, including swabs from wounds and inner cheek, and samples of hair, from under fingernails and from skin

• fingerprinting, and

• any other procedure that is not a dissection, the removal of tissue or invasive in any other way.

Coroners must consider whether it is necessary or desirable to make post mortem investigative directions. Factors to consider include:

A senior next of kin or relative may object in writing under ss 96 and 99 to a post mortem investigation direction or the authorisation to retain a whole organ. Objections are made for a variety of reasons, which may include religious, cultural and social reasons, and a coroner needs to take these into account when determining whether the direction is necessary or desirable to assist in the investigation of the death.

If a senior next of kin or relative objects to a post mortem direction, the coroner must consider whether a less invasive procedure will be sufficient to establish the person’s cause and manner of death: see s 89. The coroner should consult with the pathologist, and work closely with the CISP officer who has been assigned the case. The CISP officer will engage in discussions with the relative/s, explaining the reasons for the proposed direction, and conveying to the coroner the family’s feelings and wishes. In this manner, the great majority of objections to post mortem directions are able to be resolved. However, if they are not able to be resolved, s 97 provides a mechanism for appeal to the Supreme Court.

If a coroner determines, after considering an objection, that the post mortem examination or organ retention is necessary or desirable, senior next of kin are to immediately be notified of the decision, the right to apply to the Supreme Court for an order that it not be conducted, and that a post mortem examination may be conducted after 48 hours from the time they are given the notice: s 96(3), (4).

In most cases, the cause of death is revealed in the post mortem report. Pathological practice in post mortem reports is to list the cause(s) of death in descending order.

In Section 1, the post mortem report lists the direct cause of death followed by antecedent causes, that is, morbid conditions giving rise to the direct cause, with any underlying condition stated last.

Section 2 will list other underlying conditions possibly contributing to the death, but not relating to the disease or condition which caused it.

The post mortem report annexes ancillary reports, which can include a radiology report, analytical toxicology report and neuropathology report.

Many reportable “natural causes” deaths only require a non-invasive preliminary examination to establish cause and manner of death. The pathologist is often able to identify a cause of death based on visual examination, CT imaging and, in some cases, the deceased person’s health care records. In these circumstances the pathologist will usually recommend an inquest be dispensed with and that a coronial certificate be issued.

It is a practice of the Coroner’s Court, if it is appropriate in the circumstances, to issue a coronial certificate: see s 89(6) and the discussion below. Assistant coroners may also do so: s 15(1)(b)(iii).

The coronial certificate records the cause of death, together with the date and place of death. A high proportion of matters are finalised by this means.

It is important for families to be aware that the issuing of a coronial certificate means there will be no further medical investigation into the cause of death.

Note:

If the death falls within one of the categories within s 24, a coronial certificate can only be issued by the State Coroner or a Deputy State Coroner: s 22.

The Act does not expressly provide for the issue of coronial certificates, however, s 89(6) provides a coroner has the power to dispense with a post mortem examination if, after obtaining advice from police officers and medical practitioners, they are satisfied that the death was the result of natural causes, and a senior next of kin has advised that the family do not want any form of autopsy to be conducted.

Section 89(6) can also be utilised in cases where the pathologist is of the view that the person died of natural causes, but they are unable to ascertain the exact cause of death. This may be the case where the person’s body is significantly decomposed, or where more than one medical condition appears to have caused the death and the pathologist cannot ascertain which was predominant. If a coroner is satisfied that:

a coronial certificate may issue giving the cause of death as “Unascertained natural causes”.

The issuing of a coronial certificate does not preclude a coroner from investigating other issues, including the care and treatment provided to the deceased person and whether it contributed to their death.

A coroner has power under s 51(2) to order a police investigation of a death.

In some cases, where the circumstances of the death are clear and are not suspicious, and it appears that the death is natural, a coroner may decide not to order a brief of evidence.

Where the death appears to be from unnatural causes (for example, suicide or accident) but there appear to be no suspicious circumstances, an “officer in charge (OIC) only” brief may be ordered, which consists of an investigating police officer’s statement. This statement will assist the coroner determine such matters as:

In other cases, a full brief should be ordered. Examples of such cases include suspicious deaths, deaths in police operations, deaths in custody, correctional centres or mental health facilities (unless due to natural causes), deaths in which significant medical issues arise, and deaths of children.

Coroners do not issue search warrants. They have power to issue coronial investigation scene orders: ss 39–45.

Police investigators may, however, apply for search warrants in appropriate cases in the ordinary way under the Law Enforcement (Powers and Responsibilities) Act 2002.

The threshold for a coronial investigation scene order is low. A coroner may issue an order if they consider that a coronial investigation should be conducted in a certain place. By implication, however, a rational basis for that view is required.

Coronial scene orders are usually sought by police officers where they have been unable to secure consent to enter a property in which a person has died, or which is related in some other way with the death. Notwithstanding the low threshold for such an order, as these are coercive orders, it is important to establish that the investigating police officer has made reasonable attempts to obtain consent to investigate the circumstances of a person’s death.

An order may be made by phone (s 40(1)), which is later confirmed in writing to police: s 40(6).

Section 43(1)(a)–(r) and (2) outline the powers a police investigator may exercise at the coronial investigation scene. They are similar to crime scene powers under the Law Enforcement (Powers and Responsibilities) Act. In summary, they enable the investigators to close off and control the scene, to remove persons from the scene, to perform any necessary investigations on the scene, to conduct tests, to dig, to remove parts of structures and to seize and remove body parts and other evidence.

A coroner does not have power to issue a subpoena before an inquest is ordered. The coroner does have the power under s 53 to give notice in writing to a person to produce documents or things which may assist the coroner’s investigation.

This power is regularly exercised to obtain medical records. It can also be used to obtain policy and procedure documents which govern relevant procedures within prisons, hospitals, and the NSW Police Force. The power is subject to claims of privilege including the privilege against self-incrimination: s 53(3), (4). However, this privilege cannot be claimed in respect of medical records: s 53(4); see The privilege against self-incrimination.

In the case of deaths of First Nations persons, it is recommended that from first receipt of the matter the coroner make contact with an ACISP officer at the Lidcombe Coroner's Court. Often the ACISP officer will have already made contact with the deceased person’s family. The ACISP officer will be an important point of contact with the family, keeping them advised of progress and updates, and ensuring that their concerns about the person’s death are made known to the coroner at an early stage.

The police investigation brief and the medical evidence, including a post mortem report, may not be available to the coroner for a period of months after a death.

Once these are available, the coroner will assess the material to determine if it adequately deals with the principal questions a coroner must seek to answer. That is, is the evidence sufficient to establish the identity of the person who has died, and the date, place, cause and manner of their death: see s 81(1).

Note:

Unless there is a forensic reason to do so, a coroner need not view photos of the deceased person and the death scene.

Other questions a coroner should consider when analysing the brief are:

In many cases the basic material on the file (autopsy report, OIC statement, and advice whether family seeks an inquest) will be sufficient to form the view that an inquest is not warranted, and to dispense with one (unless an inquest is mandatory). In over 97% of NSW cases, inquests are dispensed with because the answers to the above questions are relatively clear, or they become clear with further investigation.

In other cases, the appropriate decision will be to direct that further investigations take place, and with the benefit of further information, a coroner may be satisfied that an inquest is not required, and can be dispensed with.

Note:

Examples of situations where further investigation may be required are set out below at Family concerns, Concerns about medical treatment and Concerns about mental health care.

In the following circumstances an inquest is mandatory pursuant to s 27(1):

In the first two categories above, the inquest must be conducted by the State Coroner or a Deputy State Coroner: s 22.

Except where an inquest is mandatory, a coroner has a wide discretion to dispense with an inquest: s 25.

Senior next of kin should always be asked whether they wish an inquest to be conducted and, if so, the reasons why. This advice should be sought by the officer in charge when compiling the coronial brief. See Family concerns.

A coroner will ordinarily dispense with an inquest where the identity of the person and the date, place, cause and manner of death are sufficiently disclosed on the evidence, there is no particular issue of public health or safety to address, there are no suspicious circumstances, and no compelling request for an inquest has been made.

See The “Reasons for dispensing with an inquest” form.

When determining whether an inquest should be dispensed with, a coroner should take into account any concerns raised by the family regarding the circumstances of the death. Relatives rightly expect that their concerns about the death will be carefully considered.

A coroner should always respond to family communications with respect and courtesy, and should direct further investigations if these are warranted. A coroner also needs to consider whether to respond to the family in writing, or whether it is more appropriate to involve a CISP officer in the communications with the family.

If a coroner decides that a family concern warrants further investigation, the family should be informed of this, and that the purpose of the investigation is to determine if an inquest is warranted.

In deciding whether a family concern requires further investigation, coroners need to consider the following matters.

Family members sometimes seek an inquest because they believe their relative’s clinical care was deficient, or they are of the view that hospital staff or their GP ought to have detected the medical condition which was the cause of death.

The coroner needs to determine whether there was any deficiency in the person’s medical care, and if so whether it caused or contributed to their death. This might not be evident from the coronial brief and autopsy report.

In such cases, coroners might commence with a discussion with the pathologist who conducted the post mortem examination. If the pathologist believes it is within their expertise, they will usually assist with advice as to:

If a pathologist considers an area to be outside their area of expertise, they will usually advise what specific further medical investigation might assist, and identify the appropriate medical specialty.

Coroners can also obtain the person’s hospital notes and review them, in particular the deceased person’s discharge summary. This may be appropriate where the hospital admission was brief, or the medical condition was not complex. In these circumstances the coroner may be able to form their own view as to whether there is any basis for the family’s concern.

Many reportable deaths occur against a background of chronic or acute mental illness.

Suicides are deeply distressing for families. Many families have been supporting their relative or partner for years and have done their best to keep them safe. Suicide deaths can be distressing for coroners as well.

Sadly, it is not uncommon for suicide deaths to occur within hours or days of a person’s discharge from a mental health unit. When this happens, the family is often bewildered and frustrated by the decision to discharge their relative.

Whether the decision to discharge the deceased person requires further investigation must be decided on a case-by-case basis. A decision to involuntarily detain a person is governed by the provisions of the Mental Health Act 2007. A treating psychiatrist may have little difficulty establishing that a person suffers a mental illness and requires care and treatment. However, when considering involuntary detention, a psychiatrist must be satisfied that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available. After a person has had a period of admission and has achieved a degree of stability, the psychiatrist may form the view that the test for maintaining them in involuntary detention can no longer be met.

It may be appropriate for the coroner to focus instead upon the adequacy of the discharge plan that has been prepared for the person. This sets out the plans that have been made for their mental health care and support, once discharged into the community. The discharge plan (and clinical notes for the admission) can be obtained with a s 53 order.

If appropriate, the coroner can also consider seeking a review by an expert psychiatrist of the mental health care provided; see Obtaining expert reports. The Duty Coroner can assist with this decision and the choice of expert. If an expert’s report is critical of aspects of the person’s care, enquire with the hospital or mental health service if they have taken steps to address these issues.

Certain mental health-related deaths require a higher level of scrutiny. These include:

Where the death occurs while the person was an involuntary patient, the matter is to be transferred to Lidcombe Coroner’s Court.

Sometimes families raise concerns about wider socio-medical issues such as the practice of doctor-shopping for medications, the inadequacy of mental health services, and the effects of cyber-bullying. These are often recurring issues and may have broad relevance to the manner of the person’s death. In such cases, the coroner should contact the Duty Coroner to discuss whether relevant recommendations have previously been made in respect of the issue to inform the decision of whether an inquest should be held.

The great majority of cases will not proceed to inquest and will be dispensed. The State Coroner has directed that in all cases in which inquests are dispensed with, a coroner must provide written reasons which are placed on the coronial file: see State Coroner’s Bulletin No 3 of May 2018.

Ordinarily the “Reasons for dispensing with an inquest” form (the Dispense form) need not exceed 3–4 paragraphs. It should evidence that the coroner:

It is preferable to refer to the deceased person by their name, rather than use the term “the deceased”.

If the person was already deceased when found, include when they were last seen or heard from. This is usually the best evidence of when the person died, or the range of dates within which they died.

Briefly summarise the conclusions within the post mortem report. This is the best and often only evidence as to cause of death.

In cases of suicide, the Dispense form should briefly set out the coroner’s reasons for finding that the manner of death was self-inflicted and intentional.

If the coroner has concluded that a cause of death can be established on the balance of probabilities, notwithstanding that the post mortem report finds the cause to be “Unascertained”, the Dispense form should briefly set out the coroner’s reasons for reaching this conclusion.

Once the coroner has prepared and signed the Dispense form, it is a practice of the Coroner’s Court to print it on yellow paper and place it on the coronial file. It is an essential record in circumstances where a person requests, pursuant to s 29(2), that the State Coroner review the coroner’s decision not to conduct an inquest.

Section 6A(1) defines the deceased person’s “senior next of kin” by way of a list of categories of person (if available) in cascading order of eligibility from (a) their spouse, to (b) their adult children, to (c) their parents, to (d) their adult siblings, to (e) their executor or legal personal representative. Some of these categories potentially identify more than one person as senior next of kin and, as the Act does not give priority to any one person within a particular category, more than one person may meet the definition of senior next of kin. The Act also does not provide a coroner with the power to determine who, within a particular category, will be recognised as senior next of kin. Following are some common disputes and ways of potentially resolving them.

Where multiple persons within a category satisfy the definition of next of kin and there is a dispute between them as to who should be recognised, the coroner may first seek assistance from a CISP officer who can encourage those persons in dispute to cooperate with each other in selecting a senior next of kin. These disputes are often resolved in this way. However, if they are not, the coroner does not have the power or duty to determine that only one senior next of kin will be recognised, and those in dispute may be able to seek declaratory relief in the Supreme Court.

Where a person in one category (for example, a parent or adult child) disputes the legitimacy of the relationship between the deceased and a person in another category higher in the order of eligibility within s 6A(1) (for example, a de facto partner), it is a practice of the Coroner’s Court for the coroner to make a determination as to whether the person was in a de facto relationship at the time of death. In such cases, the coroner may ask the Registrar to invite the person questioning the relationship to submit their reasons for doing so in writing, and for the de facto partner to respond in writing.

The definition of “spouse” in s 4 includes a de facto partner as defined in s 21C Interpretation Act 1987. The meaning of “de facto partner” includes a person in a de facto relationship with another person, and a person is in a de facto relationship with another person if they have a relationship as a couple living together, and they are not married to one another or related by family: s 21C(1)–(4) Interpretation Act. In determining whether two persons have a relationship as a couple, s 21C(3) Interpretation Act provides that all of the circumstances of the relationship are to be taken into account, including the matters listed in that provision. It may be helpful to advise persons involved in such a dispute that the role of senior next of kin for coronial purposes has no bearing on matters of inheritance.

Once the coroner has determined senior next of kin, if appropriate, it is recommended they ask a CISP officer to contact the senior next of kin to encourage them to cooperate with the other person in relation to funeral arrangements and to keep the other person informed of developments relating to the deceased person. Further, once the coroner determines the matter, the other person may be able to seek declaratory relief in the Supreme Court.

“Coronial material” covers a broad range of material. It includes post mortem reports, witness statements, medical records, hospital records, photographs, videos, evidence transcripts, exhibits, and suicide notes.

If a coronial matter proceeds to inquest, the principles of natural justice require that adequate reasons be given by a coroner if they refuse to provide evidence to a party of sufficient interest: Musumeci v Attorney General of NSW (2003) 57 NSWLR 193. This may be the case where there is a genuine risk that releasing the material will prejudice an ongoing police investigation, a future trial, or the integrity of a person’s evidence.

Although s 65 generally governs the provision of the coroner’s file (or part thereof) to other persons, the discussion below regarding the provision of material to family members is in accordance with the procedures of the Coroner’s Court.

Coroners frequently receive requests for release of coronial material during the investigative phase of a matter, or in cases where it has been decided not to conduct an inquest. The following are common examples.

Often family members other than senior next of kin, such as parents, siblings, former partners, and adult children, ask for access to coronial material. This is usually on the basis that the senior next of kin is not willing to share information with them.

Coroners need to keep in mind that pursuant to s 57, a relative is considered to be a person with sufficient interest in the proceedings. If a coroner receives such a request, it is appropriate to contact senior next of kin to ask if they are opposed to such access and if so, their reasons. However, it is a matter for the coroner whether those reasons justify denial of access to the family member.

An applicant for coronial material who is not a family member must request access pursuant to s 65. Coroners are exempt from the provisions of the Privacy and Personal Information Protection Act 1998 while carrying out coronial functions: s 6 Privacy and Personal Information Protection Act 1998.

Requests for coronial material are often made by media organisations, researchers, insurance companies, and law firms interested in actions arising out of the death. These requests require careful consideration. Coronial files include very personal information about the deceased person and others, as well as material that is very likely to distress grieving family members. Therefore, coroners need to be sensitive both to the feelings of relatives, and to the potential for gross breaches of privacy.

The request for access is to be granted if the coroner thinks it is “appropriate” under s 65(2) having regard to the non-exhaustive factors in s 65(3). These are:

During and after an inquest, media organisations may want access to the coronial file in the interests of fair and accurate reporting of the proceedings. Access should ordinarily be restricted to tendered material and caution should be exercised in relation to the release of visual and audio material. Copies of photographs, videos or recordings of the death scene which depict the deceased person should not be released.

Ensure that the media organisation is aware of any orders for non-publication: see Non-publication orders.

When an inquest is not held, law firms and/or insurance companies may want access to coronial material. Usually this is for the purpose of advancing civil proceedings, or assessing whether such an action might be commenced, or responding to such actions. It is debatable whether such a purpose is related to advancing a legitimate interest in the coronial proceedings.

Research bodies may seek access to coronial material for the purpose of advancing medical knowledge, or enhancing systems of clinical governance. It would be appropriate to advise senior next of kin of the request, and canvass their views upon it.

There is a fee payable for provision of documents: s 65(2)(b).

Note:

Generally, the fee is not required of family members who request information.

Inquests are inquisitorial in nature, resembling commissions of inquiry rather than criminal or civil litigation. Inquest findings do not bind participants, allocate criminal or civil liability, or declare rights as between parties. They are fact-finding proceedings.

Coroners may be likened to investigating magistrates. They determine the issues to be examined at the inquest, and give directions for investigation to police and other investigators. They are assisted by, and work with, a police advocate or counsel assisting.

There are no parties to the inquest as the term is usually understood. Rather, there are persons who have a sufficient interest in the circumstances of the death in question. Apart from relatives who have a statutory right of appearance pursuant to s 57(3), all other persons appear by leave only: s 57(1). A coroner must be satisfied that a person seeking leave to appear has a sufficient interest: see Who may appear at an inquest?.

The coroner is not bound by rules of evidence or procedure other than the requirements of procedural fairness: s 58(1). The Evidence Act 1995 does not apply in coronial proceedings: Decker v State Coroner of NSW (1999) 46 NSWLR 415.

Note:

for matters falling within s 23, that is deaths of persons in police or correctional custody, and deaths as a result of police operations, Practice Notes 2 and 3 have set case management directions which are aimed at their timely setting for inquest.

Persons with sufficient interest may be granted leave to appear in inquests and inquiries: s 57.

Unless exceptional circumstances dictate otherwise, relatives of the person who is the subject of the inquest are presumed to have standing: s 57(3); see also Annetts v McCann (1990) 170 CLR 596. One of the interests families represent is the reputation of their deceased relative: Annetts v McCann at 599.

A person with a sufficient interest will generally be a person, natural or corporate, whose reputation may be scrutinised or subject to adverse comment in a coroner’s findings, or to whom recommendations may be made. Persons with sufficient interest are often police officers, treating doctors and nurses, and persons of interest in suspicious deaths.

Insurers would not ordinarily be regarded as having a sufficient interest, if the only question for them is whether ultimately they may be liable to pay compensation to an insured person. On the other hand, by virtue of their subrogated rights, they may have a direct interest in examining a person in relation to a suspicious fire.

Parties must seek leave to appear and demonstrate that they have an interest to protect by appearing. If they cannot do so, they may be allowed to attend the inquest or inquiry with a watching brief.

Persons granted leave to appear are entitled to be legally represented.

When fixing a date for the inquest, it is important to consult with the deceased person’s family. Aside from the question of convenience, inquests can be very painful experiences for the family, and they may have good reason for wishing to avoid certain dates — for example, the deceased person’s birthday or the anniversary of their death.

Generally, the matter will be listed in the courthouse within the area where the death occurred.

Only the State Coroner can order that a jury be called, and then only in an inquest or inquiry over which they preside and consider that there are sufficient reasons to justify a jury: s 48.

Following the family statement, the advocate or counsel assisting will address the court, suggesting findings that are available on the evidence and proposing recommendations if appropriate.

Persons of sufficient interest do not have a general right to address on the whole of the evidence but are entitled to put submissions relevant to the protection of their own interests: Annetts v McCann at 601. In practice, however, interested persons are usually given wider latitude.

Legal representatives or counsel assisting sometimes request that their submissions be provided in writing, rather than orally at the close of the evidence. This request should be considered on a case-by-case basis. Agreeing to written submissions will prolong the period before findings can be given, and is not usually appropriate where the evidence and issues are not complex. However, where they are, it may be appropriate to set a timetable for the filing of written submissions. In addition, where recommendations are proposed, persons of sufficient interest who will be impacted by the recommendation will often require a short adjournment to consider their position and provide written submissions as to the need or practical feasibility of the proposal: see Making recommendations at [44-140].

Section 81 requires that a coroner who holds an inquest or fire inquiry must record their findings in writing. For assistance with the format of findings, coroners may access findings in relation to previous inquests on the NSW Coroner’s Court website.

Depending on the complexity and quantity of the evidence, it may be possible for the coroner to deliver findings, noting they must be recorded in writing.

However, due to the length or complexity of the evidence in some cases, the coroner will need to reserve findings and prepare a written document containing these together with detailed reasons. In addition, if recommendations are being considered, they need to be drafted with care.

As is the case when a magistrate reserves judgment following a criminal and civil hearing, the date for findings should ordinarily be fixed within days and not months of the inquest or inquiry.

Inquests are usually painful experiences for family members. Few would choose to relive the distressing experience of their relative’s death, were it not for the sake of finding answers to their questions and seeking changes which might prevent future such deaths.

Coroners need to be sensitive to the feelings of the family, and to do what is possible to reduce the distressing impacts of the inquest.

In appropriate cases, CISP or ACISP members should be contacted to request support for family members during the inquest.

Coroners should take care to know the names of family members who are attending the inquest, and their relationship to the deceased person. They should ask the family by what name they would prefer their relative to be called throughout the inquest. They should also pre-warn the family of forthcoming evidence which describes the immediate events of the person’s death, or will include medical evidence which may be confronting to hear.

When the family is not represented at the inquest, counsel assisting should consult with family members, and examine issues raised by them which are materially relevant to the inquest.

Coroners have a power to prohibit publication of evidence received in inquests and inquiries, where it is in the public interest to do so: s 74(1)(b).

In addition to the coroner’s express powers to make non-publication orders, Hamill J in Commissioner of Police v Deputy State Coroner [2021] NSWSC 398 at [78] accepted that a coroner has an implied or incidental power to make non-publication, non-disclosure or suppression orders over material adduced in evidence, evidence gathered in the course of a coronial investigation and material held on the court file.

The Act’s definition of “published” in s 73 is wide enough to include internet publications, as well as publication in blogs and other websites where content is made available to the general public.

Although the term “public interest” is not defined in the Act, the coroner may have regard to the factors listed in s 74(2) which include the principle that coronial proceedings should generally be open to the public.

It is well established that although the principle of open justice is of great importance, it is not absolute: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; R v Kwok (2005) 64 NSWLR 335. Nevertheless, orders for non-publication should only be made where publication would frustrate the administration of justice: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1.

Prior to the service of the coronial brief, parties with sufficient interest such as the Commissioner of NSW Police and the Commissioner of Corrective Services NSW might seek orders for non-publication of specific material, pursuant to s 74(1)(b). These applications often relate to specified content of policies and procedures. The application is usually brought on the grounds that publication would not be in the public interest because it would jeopardise police methodology, or compromise security and good order within prisons.

Evidence brought in support of such applications should be specific as to the material which is said to require non-publication, and addresses the specific harm purported to flow to the public interest if the order is not made. A non-publication order can be restricted to parts and not necessarily the whole of a document.

The terms of a non-publication order must be clear and recorded on the court file.

In NSW, non-publication orders must also be considered by coroners in cases of suicide: s 75. Reporters present in court should be warned that it is an offence to publish a report of the proceedings without an order from the coroner permitting them to do so: s 75(5) and (7).

This issue may arise when a party with sufficient interest makes a claim for public interest immunity, or when considering whether to disclose all of the evidence in a coronial brief to a person of interest. In such cases, it is recommended the Duty Coroner be consulted.

Also see HT v The Queen (2019) 269 CLR 403 and Commissioner of Police v Attorney General (NSW [2022] NSWSC 595.

A witness is not permitted, without lawful excuse, to refuse to be examined in an inquest, if required by the coroner to give evidence: s 62. A “lawful excuse” is a valid excuse supported by law: Signorotto v Nicolson [1982] VR 413; or a reason or excuse recognised by law as a sufficient justification: McGuiness v Attorney-General (Vic) (1940) 63 CLR 73 per Dixon J at 105. However, witnesses are entitled to object to answering questions if a truthful answer may tend to incriminate them or make them liable to a civil penalty: s 58(2).

Dicta in Maksimovich v Walsh (1985) 4 NSWLR 318 at 328 indicates that it would be proper for a judicial officer to advise a witness of this privilege if the witness is unrepresented. This may also be the case where a witness’s representative has overlooked the privilege.

If a witness objects to answering a question, the coroner must determine if there are reasonable grounds for the objection: s 61(2). That is, is there is a “real and appreciable risk” of criminal proceedings being taken against the witness: Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 422. Whether the risk is real or appreciable will usually be apparent to coroners from the coronial brief.

If the coroner decides that there are reasonable grounds for the objection, they must inform the witness in accordance with s 61(3), which includes in s 61(3)(b) that the coroner will give a certificate to the witness if they give evidence willingly or if required to do so under s 61(4).

If, before or during an inquest or inquiry, a person is charged with an indictable offence which raises the issue of whether they caused the death or fire in question, the coroner must suspend the coronial investigation or inquiry, pending the completion of the criminal proceedings: s 78(1)(b), (2)(b).

While coroners must inquire into suspicious deaths, they are not permitted to make any finding, comment or recommendation suggesting a person has committed any offence: ss 81(3) and 82(3). It is not a coroner’s function to determine questions of criminal or civil liability. The coroner’s task is to find the facts surrounding the cause and manner of a person’s death, not to draw legal conclusions from those facts.

Furthermore, coroners are not bound by rules of evidence or procedure and their findings, if expressed in condemnatory terms, may cause harm to a person’s reputation, or prejudice a future trial.

For these reasons, and pursuant to s 78(1)(b), if a coroner finds that the evidence given up to a certain point in an inquest or inquiry:

the coroner is required to suspend the inquest or inquiry: s 78(3)(b).

In assessing the prospects of conviction, the coroner must only take into account evidence that would be admissible in criminal proceedings. In addition, the “known person” must be a living individual.

In practice it is suggested that counsel assisting, without urging that s 78 be applied, proceed to outline the evidence that may support that conclusion.

Before suspending an inquest under s 78, a coroner must give the person of interest an opportunity to make submissions against this course of action: Maksimovich v Walsh at 328 per Kirby P. President Kirby suggested that it would be appropriate for the coroner to be open with the person of interest so that they have a chance to address the issue properly.

To protect the person of interest from prejudicial publicity, s 76 prohibits the publication of certain matters, including s 78 submissions, without the coroner’s express permission.

It is suggested that, having given a person of interest an opportunity to be heard on the question of s 78, a coroner should not give reasons for rejecting them: to do so would go against the policy underpinning s 78. Rather, if that is their intention, the coroner should simply state that they have heard the submissions but intends to suspend the inquest or inquiry.

Before suspending the inquest, the coroner may make findings that a person died on a certain date, in a certain place but must not name any person who may have been responsible for the death or make any statement about the circumstances or cause of death. This is also the case with fire inquiries: s 78(2).

Pursuant to s 79, after the criminal proceedings are complete a coroner may:

It may be appropriate to commence an inquest following criminal proceedings, where there are wider aspects of the manner of death to be considered, for example, the role of agencies in failing to prevent the death.

It has been held that the double jeopardy rule is not breached if a coroner holds an inquest after a person has been acquitted of an alleged homicide: Domaszewicz v The State Coroner (2004) 11 VR 237.

After suspending an inquest or inquiry, the coroner is to refer the matter to the Office of the Director of Public Prosecutions (ODPP) in accordance with the protocol between the Coroner’s Court and the ODPP dated 16 February 2023. In accordance with the protocol, within two months of suspending the inquest or inquiry, the coroner is to make their best efforts to ensure the ODPP is provided with the relevant material, including:

It is a practice of the Coroner’s Court to also include an analysis of the legally admissible evidence in short form, and a list of any obvious requisitions for further evidence.

The protocol provides that the ODPP will make a determination within six months following receipt of the referral from the Coroner’s Court, subject to any requisitions for further material raised by the ODPP.

Many of the problems coroners confront have previously been the subject of inquests in NSW and other States. Inconsistency between recommendations, especially recommendations that contradict one another, reduces the credibility of coroners and frustrates agencies who are asked to implement them.

Before recommendations are made final, a check should be made with the State Coroner’s Office and the NCIS to ascertain if the proposed recommendations have previously been made, and to ensure that potential inconsistency between recommendations is avoided.

If similar recommendations have previously been made, this of itself does not mean they ought not to be repeated in a subsequent inquest. This is particularly the case with enduring and significant issues of public health and safety, where the case for change is strong and little or no progress has been made with implementing the previous recommendations.

NCIS is intended to work as a national database, systematically collecting coronial data to enable the wide dissemination of coronial experience and information. Coroners may apply to NCIS for access to its databases through the State Coroner’s Office or request aggregate data reports to assist with coronial investigations. Reports can include data from open and closed cases, identifying information, summaries and recommendations: see www.ncis.org.au.

Information on the database includes:

Full text reports include:

NCIS does not contain:

Coroners have no statutory power to demand a response to recommendations. They are entitled to request one: State Coroner’s Circular No 72. If a recommendation is made to a non-government organisation or a private individual, coroners should specify a reasonable time by which a response is requested.

The Premier’s Memorandum 2009-12 sets out the process for Ministers and NSW public officials to respond to coronial recommendations.

It requires that, on receipt of a recommendation, the Minister or official acknowledge it within 21 days.

If the Minister or official considers that the recommendation falls within the responsibility of another Minister or agency, they are required to forward the recommendation to that Minister or agency and to notify the State Coroner and Attorney General of the referral. The recipient is then required to acknowledge receipt of the recommendation.

Within six months of receiving a coronial recommendation, a Minister or NSW government agency should write to the Attorney General outlining any action being taken to implement the recommendation. Reasons should be given if a recommendation is not to be implemented and may include that the recommendation will not achieve the intended outcome; the outcome can be achieved in another way; or the recommendation is impractical having regard to the cost and potential benefits.

Ministers and agencies are encouraged to provide updates to the Attorney General on any further action taken to implement recommendations following their initial advice.

If due to illness, retirement or other reason, a coroner is unavailable to conduct or complete an inquest, the State Coroner may direct another coroner to hold the inquest: s 33(2). Before doing so, the State Coroner must consult the Chief Magistrate: s 33(3).

If an inquest has already been commenced, the depositions taken may be admitted in evidence in the fresh inquest: s 64.