Advocacy in Coronial Inquests and similar public inquiries

Introduction

  1. As there are many types of public inquiries,[1] my aim is modest: to summarise some general principles based upon my experience appearing in coronial inquests.
  2. The topics I will cover are:
    1. The treatment of evidence
    2. Privileged information in the inquiry context
    3. Tailoring your approach

Treatment of evidence
Non-publicaion and other protections

  1. Coroners and other inquirers usually have the power to make non-publication orders to protect certain information. For instance, to protect the identity of undercover officers, police methodology, or national security information.[2]
  2. If you have a concern don’t be afraid to ask for a non-publication order. It is often prudent to first sound out counsel assisting.
  3. In the case of inquests, orders can be made under section 49 of the Coroner’s Act 1996 (WA) if the Coroner reasonably believes that publication would be likely to prejudice the fair trial of a person, or be contrary to the public interest.
  4. Non-publication orders are not necessarily inconsistent with open justice. They can be tailored, focusing upon specific evidence, and / or lasting for a specific duration or until an event occurs.
  5. A little time can allow your client the opportunity to explain a point so the media have the full perspective before reporting. I’ve succeeded in obtaining non-publication orders in many contexts, including inquests.  Occasions when I have failed to obtain the protection I sought include when I sought orders for:
    1. an extended time period, or
    2. a breadth or scope that could not be sufficiently justified.
  6. On the question of time – don’t forget to consider how your client might want to use the material itself. I once obtained a suppression order that was so broad, and lasted for so long, that it prevented my client from using the particular issue as in its internal training program!
  7. Sensitive witnesses, including children or those recalling traumatic events, may be allowed to give evidence in special ways – similar to allowances made in the Evidence Act 1906 (WA) for criminal proceedings.

Selecting the evidence and running the case

  1. Australian lawyers are used to the idea that the parties define the issues. In public inquiries, the inquirer decides the issues.  This is usually done in consultation with counsel assisting, and sometimes also with the principal investigator.
  2. Counsel assisting does not advocate a particular case – there are no sides.
  3. Coroners can direct investigators to continue investigating a matter even after an inquest has commenced. In this respect coronial work is similar to the work of investigating Magistrates in civil jurisdictions.[3]
  4. As the coroner decides the issues and the evidence to be led, it follows that the coroner can decide which witnesses will be called. The necessary corollary of this is that the coroner can also decide which documents (including witness statements) should simply be tendered without a witness.
  5. Counsel assisting will conduct the primary examination of witnesses. This bears some of the hallmarks of an examination-in-chief in eliciting the primary evidence of the witness.  However, it can also look very much like cross-examination as counsel assisting then tests the evidence of the witness.  Warn your witnesses: counsel assisting can progress to probing cross-examination on contentious evidence.
  6. Some counsel assisting will tender witness statements as read, especially for non-contentious witnesses. Even for contentious witnesses, counsel assisting will frequently ask the witness to confirm the accuracy of non-contentious parts of statements rather than leading that evidence.
  7. The tendering of documents is often done by counsel assisting instead of counsel for interested parties.[4] However, if an issue arises part way through the hearing, a document relevant to the issue can be provided to counsel assisting – and it is prudent to do so as soon as possible.
  8. If in preparation you conclude that your witness has additional relevant evidence that is not part of the coronial brief it is usually prudent to prepare a witness proof. As in any litigation, the process of preparing the proof can settle your witness, and knowing your clients’ evidence usually aids your preparation.
  9. However, in an inquiry context, you should consider converting the proof to a witness statement and providing it to counsel assisting. This can sometimes be critical as unless the coroner has advance warning, the evidence may not be allowed in at all.  Secondly though, it is possible that the statement will be judged non-contentious and simply tendered.  Even if it is not tendered, the statement gives a predictable framework for the examination and so should make the time on the witness stand less stressful for your witness.
  10. Remember too the old maxim: “He who writes the first draft wins”. The application in this case being, it is easier for most people to give simple, clear and coherent evidence to their own lawyer in proofing than it is doing so on the witness stand.

 Rules of evidence

  1. Relevance bears an unfamiliar meaning in public inquiries. Counsel assisting can examine a witness on any matter that the inquiry considers both proper and relevant in relation to matters within the terms of reference.[5]  For coronial inquests section 25 of the Coroners Act 1996 (WA) sets the statutory parameters.
  2. Section 44(4) Coroners Act explicitly provides that the coroner may disallow any question which in the coroner’s opinion is not relevant or not a proper question. The approach of different coroners can vary markedly – so watch the treatment of counsel who go before you.
  3. Coroners may make findings based on evidence that would not be admissible, or would hold little weight, in ordinary court proceedings. To be clear: the rules of evidence do not apply: section 41 Coroner’s Act 1996 (WA).
  4. Further, the standard of proof applicable to the findings is the balance of probabilities as explained in Briginshaw v Briginshaw.[6]
  5. While the absence of the rules of evidence can be freeing for the advocate, remember that it can also mean that your client’s witnesses may face questions that are speculative, and they may be asked to give (or comment upon) hearsay evidence, or give opinions with seemingly little basis.[7]
  6. The corollary of the inquisitorial nature of the proceeding is that persons who appear at an inquest are not bound as between themselves by the coroner’s findings.[8]

Cross-examining as counsel for a witness

  1. A key implication of the low threshold for admissibility is that it is very difficult to exclude evidence.[9]
  2. Cross-examine with the intention of eliciting the material needed to make the closing submissions that you desire to make.
  3. The sage words of Chester Porter put the point better than I could:[10]

As in all advocacy it is necessary for the advocate to decide beforehand the objectives sought to be achieved.  Every question asked carries a risk, and should only be asked if the likely advantage will exceed the risk.  Sometimes, of course, risks have to be taken.  Sometimes it may well be in the interests of the party represented to know the truth as early as possible.

Appearing before the coroner therefore carries the usual risks where too many questions are asked.  There is a natural desire to impress the client, but it is unwise to sacrifice good advocacy in the interest of simply impressing one’s clients.  In particular, having obtained the right answer, many experienced advocates make the mistake of asking the question again in order to emphasis the point made, and finish up with the witness changing the answer.  The advocate must decide before he or she asks questions, where the questions may lead.

Privileged information in the inquiry context

  1. Legal professional privilege is said to be so fundamental to the proper functioning of a legal system that it is not abrogated in inquiries except by express statutory provision.[11]
  2. The privilege against self-incrimination is abrogated by many inquiry statutes. The statutory abrogation is usually accompanied by an expression of immunity, either a use immunity, a derivative immunity or both.
  3. For corruption and crime investigations this is an evolving area of law that has been the subject of several recent High Court decisions. As my focus is on inquests, I simply reference the decisions.[12]
  4. In Western Australia when a witness declines to answer a question in a coronial inquest on the ground that his answer may tend to incriminate him or her, the witness may be offered a certificate and ordered to answer.[13] Any evidence given by a person with a certificate is inadmissible in evidence in criminal proceedings against that person (ie. it provides ‘use immunity’).
  5. I have already referred to non-publication orders. These are certainly useful to protect sensitive evidence (including material covered by public interest privilege (immunity)).  However, if you think the inquiry could be progressed without the sensitive information, one strategy you shouldn’t overlook is being honest with counsel assisting and explaining:
    1. its sensitivity; and
    2. how you say the inquiry can progress without it.
  6. If you can avoid production this will give better protection than non-publication orders.

Tailoring the cloth to fit the cloak of counsel assisting in various inquiries

  1. An interested person may appear, or be represented by a legal practitioner, at an inquest: section 44(1) Coroners Act 1996 (WA). In order to grant leave for a person to be represented by counsel, a coroner must be satisfied that the person has a “sufficient interest”.  This is akin to a test of standing.  This is a question of fact based upon the circumstances of the death.[14]
  2. A person will be an “interested person” if there is a reasonable prospect that the coroner may make a finding adverse the interests of the person, so section 44(2) of the Coroners Act 1996 (WA) mandates that such a person must be given the opportunity to present submissions against the making of such a finding. The class of persons who may be granted leave will be wider than those who may potentially be the subject of an adverse finding.[15]
  3. Leave to appear may be conditional, restricting the practitioner’s rights to those relevant to the interest person’s interests.
  4. There is scope for counsel assisting to operate in a variety of ways. This flexibility, together with the usual variability in temperament and personality, means that counsel assisting vary greatly.  Consequently, it is prudent to talk to practitioners who regularly appear in inquests to get a sense of what to expect.
  5. Counsel assisting are entitled to confer with the coroner / inquirer. Thus, it is prudent to assume that when you hold discussions and correspond with counsel assisting your communications may be disclosed to the coroner.
  6. Remember always that most inquiries, and all coroners, are resource constrained. This is relevant in that if there is an aspect of the investigation that your client can assist with, it may be worth your client volunteering to assist.  This can give your client early notice of the issues and the ability to respond in anticipation of recommendations.
  7. It is sometimes said that as inquiries are inquisitorial that they are not adversarial. This may be so, but I caution that it is often a flawed analysis.  Just because the selection of the evidence is dictated by the inquirer / coroner, this does not mean that the meaning of the evidence is also dictated.  Everything is open to interpretation.

[1] Some are convened by parliaments, some by the executive government.  Some investigative officials, committees or agencies have a standing function whereas others are ad hoc.

[2] Note too that the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) may apply to some civil proceedings, but usually only after the giving of notice by the federal Attorney-General: section 6A.

[3] Dillon, Hugh and Marie Hadley, The Australasian Coroner’s Manual (2015), p84.

[4] Dillon, above note 3, p173.

[5] Renton, Darren, Role of Counsel Assisting (Law Society of WA, CPD presentation).

[6] Re State Coroner; Ex Parte Minister for Health (2009) 38 WAR 553, 561 [21].

[7] Brown, Liam, Representing witnesses called before inquiries into the conduct of the executive government (2015, Legalwise CPD Seminar).

[8] Re State Coroner; Ex Parte Minister for Health (2009) 38 WAR 553, 561 [21].

[9] Dillon, above note 3, p172.

[10] Dillon, above note 3, p172, quoting Chester Porter, ‘Appearing at a coronial inquest: The function of an advocate’ in Coronial Law and Practice: Seminar Papers, College of Law, Sydney, 1993.

[11] Dillon, above note 3, at p85; Streit, Jens, Legal Issues Affecting Public Inquiries, (2015, Legalwise CPD Seminar), paragraph 44, citing Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, [9] and [11].

[12] X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92; Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196; Lee v The Queen [2014] HCA 20; (2014) 88 ALJR 656.  See the case note by Edward Greaves at (2014) 41(7) Brief 14.

[13] Coroners Act 1996 (WA), section 47.

[14] Barci v Heffey (unreported, Vic Sup Court, 10 February 1995, Beach J).

[15] Annetts v McCann (1990) 170 CLR 596 at 608-609.