Last updated 20 January 2022
Once a decision has been made to hold an inquest, the coroner will often hold a pre-inquest conference to determine the scope or questions to be resolved in the inquest and to discuss the evidence and witnesses required (s 34 Coroners Act 2003 (Qld) (Coroners Act)). Counsel Assisting will discuss the issues with unrepresented families before the pre-inquest proceedings to ensure their views are heard and expressed.
It is acknowledged that attending the Coroners Court for an inquest might be the first time that you have attended court, and it can be intimidating and overwhelming. To prepare for the inquest, it is helpful if you understand how the inquest will operate and the types of recommendations that the coroner may give once it concludes.
Role of Counsel Assisting
The role of Counsel Assisting, usually fulfilled through in-house lawyers or external counsel for complex or contentious matters, is to support the coroner at an inquest by impartially and fairly presenting evidence. Counsel Assisting will help to identify issues to be examined, call and examine witnesses, work through possible preventative recommendations and make submissions to the coroner about proposed findings. If required, Counsel Assisting may also prepare draft findings for the coroner by summarising evidence and outlining any relevant law. It is important to note, that while Counsel Assisting provides a key support role, the coroner is responsible for assessing the evidence and making findings.
Rights for family to appear and have legal representation
Any person who has a sufficient interest may appear, examine witnesses and make submissions at a coronial inquest. This may include a family member of the deceased or a representative of a company who is alleged to have an involvement in the death (s 36(1)(c) Coroners Act).
If a family member decides to appear, they have the right to be legally represented in the inquest proceedings (s 36(4) Coroners Act). Having a lawyer may help a grieving family to ensure that witnesses are asked questions about the matters that are of concern to them and to make submissions to the coroner.
If a family member does not have legal representation or prefers to observe and not participate in the proceedings, Counsel Assisting may play an important role. While Counsel Assisting does not represent the family members of the deceased, they can assist in relaying their views at the pre-inquest and inquest proceedings. Some practical examples of this include:
- advising the court of specific issues that the family wishes to be examined
- inviting a family member to give oral evidence at the beginning of the inquest
- providing the family’s written submissions to the coroner
- identifying specific questions a family member would like a witness to be asked
- asking for permission from the coroner to examine witnesses on a family member’s behalf.
Procedure for inquest
Coronial inquests are ordinarily held in the Magistrate Court nearest to where the death of the person occurred.
A coronial inquest is different to ordinary court proceedings. It is an inquisitorial rather than adversarial process, and it does not seek to answer questions of criminal or civil liability. An inquest is conducted for the purpose of gathering information about the cause and circumstances of a person’s death. This enables the coroner to make recommendations regarding the person’s death that may assist in preventing similar deaths in the future.
In terms of procedure, a coronial inquest will generally be conducted in the following order:
- Counsel Assisting and the parties appearing in the inquest will introduce themselves.
- Witnesses (including experts) will be called to give evidence on oath or affirmation.
- Counsel Assisting, parties and the coroner will ask questions of witnesses.
- After hearing witness evidence, evidence will be closed.
- Parties will make final oral or written submissions to the coroner.
- The coroner will adjourn proceedings to consider evidence, submissions and findings.
- The coroner will make and deliver findings (usually adjourned to a later date and the appearing parties will be invited back to hear the findings).
- Inquest findings will be published on Queensland Courts website.
The length of time between the evidence being heard and findings being delivered will vary depending on the complexity of the case (s 44 Coroners Act). The coroner will, however, advise the nominated next of kin and all interested parties when findings have been made.
Broadening the inquest scope with human rights
The intersection of human rights and the coronial process was discussed in the inquest into the death of Tanya Day in Victoria, which has similar human rights protections (see Coroners Court of Victoria, Ruling on Application Regarding the Scope of the Inquest into the Death of Tanya Louise Day (2019) 2017/6424; Coroners Court of Victoria, Inquest into the death of Tanya Louise Day (2020) 2017/6424). Ms Day, a Yorta Yorta woman, was arrested for being drunk in a public place (on a train) and taken into police custody. While in custody, Ms Day had a series of falls where she hit her head, causing brain injuries. Although police officers on duty checked on Ms Day throughout her time in custody, medical help was delayed. Despite surgery, Ms Day died from the brain injuries caused by the series of falls in police custody. The coroner determined that human rights issues, including discrimination and systematic racism, could be considered as a part of the inquest into Ms Day’s death and ultimately found that Ms Day had been subjected to an unconscious bias on the part of the train conductor in deciding that she should be removed from the train.
The coroner may order a person to attend a coronial inquest to give evidence as a witness (s 37(4)(a) Coroners Act). While giving evidence, the coroner may order a witness under oath or affirmation to answer a question relevant to the proceedings (s 37(4)(b) Coroners Act). There are significant penalties, including fines and arrest, for failing to comply with an order or attend an inquest without reasonable excuse (ss 37(6)-(7) Coroners Act).
Prior to the inquest being held, the witness will receive a written notice advising the time and date they are required to attend. A person may be entitled to compensation for travel and other related expenses regarding their involvement as a witness. An investigating police officer will usually be able to provide details of the claim process after the witness has provided evidence.
The Coroners Court of Queensland provides a number of practical tips for the role of witnesses at a coronial inquest. If you are called to give evidence as a witness you should:
- bring a copy of the summons and any statement you have prepared
- dress neatly, noting that formal dress is not required
- arrive at least 15 minutes before the time allocated for your evidence—the court location and number will be on your notice
- wait outside the courtroom until you are called—witnesses are not usually allowed in the courtroom before they give evidence. Note that there can be unexpected delays
- you will usually be able to speak to Counsel Assisting before you give evidence
- once you are called, enter the courtroom and bow your head to the coroner as you enter
- you will be directed to the witness box where the coroner will ask if you would prefer to take an oath on the Bible or an affirmation to show your commitment to tell the truth
- Counsel Assisting will ask questions first. If you have provided a statement, you will usually be shown a copy of that statement and you may refer to it while giving evidence
- other parties or their lawyers may ask questions, and sometimes the coroner will also ask questions. Refer to the coroner as ‘Your Honour’ if you speak to them directly. The length of your evidence will depend on the circumstances
- when all parties have finished asking questions, the coroner will excuse you and you can leave the court or take a seat in the public gallery to observe the rest of the inquest.
Special circumstances for witnesses
There are circumstances where a witness may be excused from giving evidence at an inquest. This was discussed in the inquest into the deaths of Hayden Duncan, Glen Duncan and Reginald Fisher (see Inquest into the deaths of Hayden Duncan, Glen Duncan and Reginald Fisher (2009) COR 868-870/06). In this case, the driver of the train involved in the incident that lead to the deaths was excused on the basis of psychiatric evidence. An application was made that asserted that the train driver had suffered depression and post-traumatic stress disorder as a result of the incident, and that there would be a real risk of harm if he was required to give evidence.
The coroner may also direct that a witness is only required to give written rather than oral evidence. For example, in Christensen v Deputy State Coroner, it was established that while the coroner may order a person to give evidence as a witness, there is no requirement that this must be performed orally rather than in writing (see Christensen v Deputy State Coroner  QSC 38). The Supreme Court held that it was within the coroner’s power to excuse a witness who was suffering from post-traumatic stress disorder from giving oral evidence to avoid adverse impacts to their mental state.
The inquest into the death of Marcia Anne Kathleen Maynard highlighted the pressures that can be placed on witnesses in coronial investigations (see Inquest into the death of Marcia Anne Kathleen Maynard (2020) 2015/3872). Ms Maynard was a registered nurse who provided care to prisoner Garnet Mickelo prior to his death. As this death occurred in custody, an inquest was required to be held. Ms Maynard was required as a witness in the proceedings and expressed to her family, lawyers and colleagues that she was experiencing significant stress in relation to having to present evidence. Before the inquest was held, Ms Maynard committed suicide and a coronial investigation into the circumstances of her death was conducted.
In response to Ms Maynard’s death, the coroner made a number of comments and preventative recommendations in relation to witnesses in coronial proceedings under s 46 of the Coroners Act. Having regard to the considerable stress that witnesses experience in the coronial process, the coroner commented on the need to minimise counter-therapeutic consequences. It was recommended that the Queensland Government facilitate and fund a counselling program called Coronial Family Services for families and witnesses involved or impacted by the coronial process.
The coroner may obtain expert opinion where it is considered necessary for the investigation. Forensic medicine officers and mental health clinicians are often consulted to review investigation material and provide preliminary opinions in relation to the evidence. Depending on the complexity of the case, the coroner may also seek approval from the State Coroner to obtain an independent expert report where specialist clinical or technical expertise is required.
Expert witnesses may also be required where there is doubt or competing opinions in relation to the cause of death. Depending on the circumstances, this may require a forensic or specialist pathologist to conduct an autopsy to resolve the issues in question. However, these procedures are invasive, and these issues can often be resolved locally with external examination by an appropriately qualified practitioner and review of police evidence.
As noted previously, a family member or another person with sufficient interest has a right to appear, examine witnesses and make submissions at an inquest (s 36 Coroners Act). When a person is making submissions, the issues must be limited to those upon which the coroner can comment such as public health or safety, the administration of justice and strategies for preventing future deaths in similar circumstances (s 36(3)(b) Coroners Act).
The discretion of the coroner to restrict submissions was discussed in the case of Annetts v McCann (1990) 170 CLR 596. In this case, relating to events in Western Australia, counsel for the deceased’s family sought permission to make closing submissions on any aspect of the inquest before the coroner reached a final decision. The coroner refused that request on grounds that, while the family members had sufficient interest, this did not extend to making submissions on any potential finding, including that may be adverse to their own or the deceased’s interests. The coroner asserted that they had an unfettered discretion to refuse counsel’s closing address. On appeal, the High Court disagreed that the coroner had an unfettered discretion. Rather, the deceased’s family members had a common law right to be heard regarding potential adverse findings against themselves or the deceased. The majority of the High Court held that this accorded with the principles of natural justice and that the coroner’s legislation had not excluded a right to comment on adverse findings. However, it was established that this right did not extend to the ability to comment on the broader subject matter of the inquest as claimed on behalf of the family.
The extent to which family members are entitled to make submissions to a coroner in Queensland was discussed in the inquest into the death of Hamid Khazaei (see Inquest into the death of Hamid Khazaei (2018) 2014/3292, pp. 6-10). It was accepted that the decision in Annetts v McCann did not limit the matters to which family members could make submissions in Queensland. This was on the basis that Queensland’s Coroners Act did not restrict or limit matters on which family members could make submissions. The coroner held that on the basis of legislative history, the reasoning in Annetts v McCann did not apply to an inquest in Queensland. In other words, family members and those with a sufficient interest are entitled to make submissions with respect to findings that the coroner is required to publish and any recommendations that may be made under the Coroners Act (ss 36, 46 Coroners Act).