Law Society Journal 2009: HUMAN RIGHTS IN CORONIAL INQUESTS

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HUMAN RIGHTS IN CORONIAL INQUESTS

Julie
O’Brien^[1]

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This article considers how human rights principles can influence the conduct
of coronial inquests. In particular, human rights principles may influence the
scope of an inquest and the manner in which a coroner exercises their discretion
to comment and/or make recommendations about matters related to a death.

Although any party can make submissions that seek to protect or promote human
rights, there is a clear role for a human rights intervener in cases that raise
systemic issues. The Australian Human Rights Commission has been granted leave
to appear in a number of coronial inquests in New South
Wales,^[2] Queensland,^[3] Western
Australia^[4] and the Northern
Territory.^[5] The Commission is also
involved in a number of ongoing inquests in the Northern Territory (concerning
the deaths of Mr Gurralpa and Mr Plasto-Lehner) and Western Australia
(concerning the death of Mr Ward).

THE PROTECTION OF HUMAN RIGHTS THROUGH THE CORONIAL
PROCESS

The coronial process is a flexible one. It is inquisitorial, rather than
adversarial. The coroner is not bound by the rules of evidence and may inform
him or herself in anyway s/he considers appropriate.

The coroner’s role is to investigate a death, or a suspected death. The
scope of the investigation is defined by the coroner’s obligation to make
findings on the identity of the deceased, the time and place of death and the
cause of death. There is also discretion for the coroner to make comments and/or
recommendations on matters connected with the death relating to public health
and safety.

Human rights principles provide a legitimate reference point for the exercise
of the coroner’s discretion. The need to conduct a comprehensive inquest
into both the immediate and systemic causes of a death to adequately protect
human rights provides a basis for arguing for a broader scope to an inquest,
both in terms of the issues it covers and the evidence it receives. Moreover,
the power of the coroner to comment provides a valuable opportunity to protect
human rights and human rights considerations may influence the scope and nature
of these comments.^[6]

A HUMAN RIGHTS INTERVENER

Generally, persons with a ‘sufficient interest’ may appear in
coronial proceedings to examine and cross witnesses and make submissions. The
Commission has been recognised as having a ‘sufficient interest’ in
inquests that raise human rights issues, based on its statutory functions to
protect and promote human rights, including its function to intervene in court
proceedings that raise human rights issues.

EXAMPLES OF THE COMMISSION’S INTERVENTIONS

MULRUNJI

This inquest concerned the death in custody of an Aboriginal man who was
arrested for public nuisance. The Commission’s submissions considered
issues including:

• The arbitrariness of the arrest (article 9 of the ICCPR). The Commission
  submitted the arrest involved an inappropriate exercise of discretion and a lack
  of awareness of alternatives to arrest.
• The failure to assess and monitor Mulrunji’s health as being
  inconsistent with the right to life (article 6 of the ICCPR) and the right to
  humane treatment (article 10 of the ICCPR).
• The adequacy of the police investigation of Mulrunji’s
  death.

The Commission suggested 40 comments on systemic issues that,
in its view, would contribute to the protection of human rights. The Deputy
Coroner adopted all of the 40 comments.

SIMPSON

This inquest involved the death in custody of a man suffering from a serious
mental illness. Mr Simpson hanged himself. He had been held in segregated
custody, locked in his cell for 23 hours a day, for more than two years prior to
his death.

The Commission submitted that Mr Simpson’s treatment was inconsistent
with his rights to humane treatment (articles 7, 10(1) of the ICCPR) in the
following respects:

• the prolonged detention in segregated custody, particularly in light of his
  mental illness;
• the failure to transfer Mr Simpson to the acute psychiatric ward, contrary
  to the recommendations of psychiatrists that he required treatment in hospital;
  and
• the failure to provide adequate psychiatric care while he remained in the
  correctional environment.

The Commission’s submissions were
taken into account by the Coroner in making her findings and formulating her
recommendations to prevent future deaths.

ONGOING INQUESTS

Gurralpa and Plasto-Lehner: These inquests were heard together as the
circumstances leading to the deaths were similar. Mr Gurralpa was in custody at
the time of his death and Mr Plasto-Lehner’s death appears to have been
caused or contributed to by injuries sustained while in custody. Both deaths
followed the use of force by police, and in particular the use of a ‘prone
restraint’. The human rights issues include:

• the amount and type of force used by the police;
• the police obligation to care for the health and life of the
  deceased’s during their detention;
• police training in the use of the prone restraint, including the dangers and
  risk factors; and
• police training in strategies to deal with mentally-ill persons (Mr
  Plasto-Lehner suffered from a mental illness).

Ward: This
inquest concerned the death of an Aboriginal man while in a prisoner transport
van. The human rights issues include:

• the decision to arrest Mr Ward and then refuse bail;
• the care and treatment of Mr Ward whilst in the transport van;
• the adequacy of policies and training on the transport of prisoners;
  and
• the adequacy of the police investigation into Mr Ward's death.
  

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^[1] Julie O’Brien is a Senior
Lawyer at the Australian Human Rights
Commission.

^[2] Inquest into the
Death of Scott Simpson, NSW Coroners Court, 27 June 2006.

^[3] Inquest into the Death of
Mulrunji, Queensland Coroners Court, 27 September
2006.

^[4] Inquest into the
Deaths of Nurjan Husseini and Fatimeh Husseini, WA Coroners Court, 16
December 2002.

^[5] Inquest into
the Death of Andrew Ross, Alice Springs Coroner’s Court, 9 February
1999.

^[6] J. Hunyor, ‘Human
Rights in Coronial Inquests’ (2008) 12 Australian Indigenous law Review 64-74.