Commission submissions: Mulrunji

IN THE CORONERS COURT OF QUEENSLAND INQUEST INTO THE DEATH OF MULRUNJI ON PALM ISLAND, 19 NOVEMBER 2004

SUBMISSIONS OF THE

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION: MATTERS FOR ARGUMENT

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1. The Human Rights and Equal Opportunity Commission (‘the Commission’) seeks leave to appear in this inquest pursuant to s 36(1)(c) of the Coroners Act 2003 (Qld) (‘the Coroners Act’).

2. Should the Commission be granted that leave, these submissions also address issues, raised by counsel assisting the Deputy State Coroner as matters for argument, that fall within the areas of interest identified by the Commission. The Commission does not seek to make submissions on all of the matters raised by counsel assisting.

A. Leave to Appear

3. Section 36 of the Act states:

(1) The following persons may appear, examine witnesses, and make submissions, at an inquest -

1. a police officer, lawyer or other person assisting the Coroners Court;
2. the Attorney-General;
3. a person who the Coroners Court considers has a sufficient interest in the inquest.

4. The Commission submits that the Deputy State Coroner should consider the Commission to have a ‘sufficient interest’ in the inquest and that the Commission should accordingly have the right to appear, examine witnesses and make submissions pursuant to s 36(1)(c) of the Coroners Act.

5. The basis for the Commission’s interest in the inquest is set out in the affidavit of the President of the Commission, John von Doussa, sworn 4 February 2005 and previously tendered in this matter. A copy of that affidavit is attached to these submissions.

6. As set out in that affidavit (see [3]-[7]), the Commission’s statutory functions include intervening, with the leave of the court, in proceedings involving human rights and racial discrimination issues: s 11(1)(o) Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’); s 20(1)(e) Racial Discrimination Act 1975 (Cth) (‘the RDA’). It is also a function of the Commission to promote an understanding and acceptance of human rights and compliance with the RDA: s 11(1)(g) HREOC Act; s 20(1)(b) RDA. It is further a function of the Commission, performed by the Aboriginal and Torres Strait Islander Social Justice Commissioner, to promote discussion and awareness of human rights in relation to Aboriginal persons: s 46C(1)(b) HREOC Act.

7. The Commission submits that its statutory functions relating to human rights and racial discrimination are directly enlivened by the subject matter of these proceedings. As set out in the annexure ‘JvD1’ to the affidavit of John von Doussa, the human rights and racial discrimination issues relevant to the inquest are as follows:

• The right to life which imposes upon governments an obligation to take positive measures to protect human life;
  
• The right of detained persons to be treated with humanity and dignity;
  
• The right to an effective remedy for alleged breaches of human rights, requiring the prompt and impartial investigation of allegations of breaches of human rights; and
  
• The prohibition on discrimination which extends to prohibiting laws and practices which have a disproportionate adverse effect on people of a particular racial group.
  

8. The Commission has identified a number of particular issues in the inquest in which it has an interest (affidavit of John von Doussa, [10]).1 These issues are not peripheral to the inquest. They go directly to the circumstances of the death the subject of the inquest and also to the prevention of deaths in similar circumstances in the future (a matter about which the Deputy State Coroner may comment under s 46(1)(c) of the Act). The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the need for deaths in custody to be fully investigated, with a scope extending beyond the immediate cause of death to include ‘the quality of the care, treatment and supervision of the deceased prior to the death’ (recommendation 12) and the making of recommendations ‘with a view to preventing further custodial deaths’ (recommendation 13).

9. The classes of persons with ‘sufficient interest’ in a matter ‘are, or may well be, larger than the class of persons against whom a coroner may contemplate making an unfavourable finding’: Annetts v McCann (1990) 170 CLR 596, 609-10 (Brennan J). The Coroners Act provides examples for the purposes of s 36(1)(c) of persons who may be found by a Coroner to have a sufficient interest. These include ‘the representative of a department’, a description which, in the Commission’s submission, contemplates the granting of leave to persons in a position similar to that of the Commission in the present matter. The Explanatory Notes to the Coroners Bill 2001 similarly give the example of ‘a representative of a government department’: p 27.

10. The State Coroner’s Guidelines also acknowledge that ‘parties that may not be directly implicated in the death’ may nevertheless ‘have sufficient interest to be given leave to appear’. Examples are given of parties in positions similar to the Commission, namely ‘government welfare agencies and regulatory agencies’: p 8.9.

11. Leave to appear has been granted to the Commission, and bodies with interests of a similar nature, in a number of coronial inquiries in other jurisdictions. As noted in the affidavit of John von Doussa (at [8(a)]), the Commission was granted leave by the Western Australian Coroner to appear in Inquest into the Death of Nurjan Husseini and Fatimeh Hussaini (No 29/02). Freckelton cites further examples of permission granted to the Council for Civil Liberties in a series of inquests into police shootings in Victoria and permission granted to the Public Advocate in inquests into the deaths of people with intellectual disabilities in a fire. He suggests that the right to appear at an inquest ‘is generally liberally interpreted’.2

12. In the United Kingdom, the House of Lords in the matter of In Re Northern Ireland Human Rights Commission [2002] UKHL 25, contemplated that the Northern Ireland Human Rights Commission was a ‘properly interested person’ in the inquest held into the 1998 bombings in Omagh: see [4], [24], [28] (Lord Slynn of Hadley with whom Lord Woolf and Lord Nolan agreed); [61] (Lord Hutton).
    

B. The Interpretation of ss 45, 46 and 36 of the Coroners Act

Prohibition on Statements by a Coroner as to Liability

13. Section 45(2) of the Coroners Act provides:
    

    A coroner who is investigating a death or suspected death must, if possible, find –

    1. who the deceased person is; and
    2. how the person died; and
    3. when the person died; and
    4. where the person died; and
    5. what caused the person to die.

14. Section 46(1) provides:
    

    A coroner may, whenever appropriate, comment on anything connected with a death investigated at an inquest that relates to –

    1. public health or safety; or
    2. (b) the administration of justice; or
    3. (c) ways to prevent deaths from happening in similar circumstances in the future.

15. A coroner must not include in her/his findings or comments ‘any statement that a person is, or may be – (a) guilty of an offence; or (b) civilly liable for something’: ss 45(5) and 46(3).

16. The Commission submits that the meaning of this prohibition is clear on its face and is limited in its effect. The effect of the prohibition is that a coroner must not state words to the effect that a person is, or may be guilty of an offence or civilly liable for something.

17. The statement of findings of fact which may go to making out a criminal offence or civil liability is not prohibited. A coroner is under a duty to make factual findings, where possible, of the matters set out in s 45(2). Construed in context, the prohibition in ss 45(5) and 46(3) does not operate so as to artificially constrain a coroner in fulfilling that duty: the prohibition applies only to statements of conclusion as to legal liability from those facts. It has been observed that ‘the coroner is to find the facts from which others may, if necessary, draw legal conclusions’: Keown v Khan  [1998] VICSC 83, Callaway J.3

18. It will nevertheless be appropriate for a coroner to take care in the manner in which her/his findings are expressed: ‘findings of coroners ought to eschew use of language which connotes legal conclusions as opposed to factual findings’: Keown v Khan  [1998] VICSC 83, Ormiston JA.

19. The Commission submits that the position is correctly stated by the Coroners Guidelines (at [8.7.5], p 8.14) which provide that
    

    there is no impediment to Coroners providing a full and complete narrative of the circumstances of death nor stating their conclusions as to the responsibility of individuals or organisations for the death provided they refrain from using language that is applicable to decisions made by criminal and civil courts when they adjudicate upon the same issues.

20. In Perre v Chivell [2000] SASC 279, Nyland J considered s 26(3) of the Coroners Act 1975 (SA) which provided that: ‘A coroner holding an inquest must not in the inquest make any finding, or suggestion, of criminal or civil liability’. Her Honour held that the word ‘suggestion’ (a broader expression than ‘statement’ used in the present legislation) should not be read so as to prohibit ‘the mere finding of certain facts’ that could ‘suggest or hint at criminal or civil liability’. Nyland J stated (at [57]):
    

    [Section] 26(3) refers not only to findings of criminal or civil liability, but also any "suggestion" thereof. The addition of the word "suggestion" is liable to cause confusion as it might be argued that the mere finding of certain facts can, in cases such as the present, suggest or hint at criminal or civil liability and hence breach the section. This is due to the fact that certain acts, such as, in this case, sending a bomb, appear to have no possible legal justification. However, I do not think that s 26(3) should be read in such a way. The mere recital of relevant facts can not truly be said, of itself, to hint at criminal or civil liability. Even though some acts may not seem to be legally justifiable, they may often turn out to be just that. For example a shooting or stabbing will, in some circumstances, be justified as lawful self-defence. As I have stated, criminal or civil liability can only be determined through the application of the relevant law to the facts, and it is only the legal conclusions as to liability flowing from this process which are prohibited by s 26(3). Thus, the word ‘suggestion’ in this section should properly be read as prohibiting the coroner from making statements such as ‘upon the evidence before me X may be guilty of murder’ or ‘X may have an action in tort against Y’ or statements such as ‘it appears that X shot Y without legal justification’. In other words, the term ‘suggestion’ in s 26(3) prohibits speculation by the coroner as to criminal or civil liability…

21. Nyland J cited with approval the views of Bingham MR in Reg v Coroner for North Humberside and Scunthorpe, Ex parte Jamieson [1994] 3 All ER 972. That was a decision under the Coroners Act 1988 (UK) which provides in rule 42 that ‘No verdict shall be framed in such a way as to appear to determine any questions of – (a) criminal liability on the part of a named person, or (b) civil liability’. Bingham MR stated (at 990):
    

    (5)   It may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in rule 42.  But the scope for conflict is small.  Rule 42 applies, and applies only, to the verdict.  Plainly the coroner and the jury may explore facts bearing on criminal and civil liability.  But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability.
    
    (6)   There can be no objection to a verdict which incorporates a brief, neutral, factual statement: ‘the deceased was drowned when his sailing dinghy capsized in heavy seas’, ‘the deceased was killed when his car was run down by an express train on a level crossing’, ‘the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium’.  But such verdict must be factual, expressing no judgment or opinion, and it is not the jury’s function to prepare detailed factual statements.

22. The Commission also notes the following statement of Bingham MR in that matter (at 991):

(14) It is the duty of the coroner as the public official responsible for the conduct of inquests… to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory…

23. The statements of the coroner that were the subject of challenge in Perre v Chivell included:

    • ‘the only reasonable inference to be drawn from the evidence is that [Domenic] Perre was responsible, in the sense that he constructed the bomb, and either posted it or arranged for someone else to post it on his behalf to Detective Sergeant Bowen’; and
    • 'I find… that the circumstances of the death of Detective Sergeant Geoffrey Leigh Bowen were that he died when he opened a parcel bomb, sent to him by Domenic Perre, and the bomb exploded in his hands’.

24. Nyland J found that these statements did not breach the relevant prohibition, stating (at 58):

    It would… lead to an absurd result if s 26(3) were to be read so strictly as to prevent the coroner from identifying a relevant factual matter surrounding a death, for example, the fact that a person died as a result of a collision with a car driven by X, or in the course of surgery, performed by Y. I have therefore concluded that the statement made by the coroner that ‘Perre sent the bomb’ and the other statements which are the subject of criticism in these proceedings are relevant findings of fact which were reasonably open to the coroner on the evidence and they do not offend against the provisions of s 26(3).

25. Returning to the present matter, to paraphrase the example given by counsel assisting in his document ‘Matters for Argument’, a coroner is not prohibited from making a finding to the effect that:
    • A died as a result of the accidental application of force by B; or
    • died as a result of the deliberate application of force by B.

Neither finding amounts to a statement that a person is or may be guilty of an offence or civilly liable for something.4

26. This approach to the prohibition in ss 45(5) and 46(3) will, in the Commission’s submission, ensure a full and thorough investigation of the death the subject of the inquest, resulting in clear and complete factual findings. Such an approach is consistent with human rights principles which require that deaths for which there may be state responsibility be effectively investigated to ensure the right to life is adequately safeguarded.5 It is a well-established principle of the common law that statutes are to be interpreted and applied, as far as their language permits, so as to be in conformity with the established rules of international law and in a manner which accords with Australia’s international treaty obligations.6

27. The need for a full and thorough coronial investigation was also emphasised by Commissioner Johnston in the report of RCIADIC: see National Report, Volume 1, 129-157. It can be noted that part of the intention of Parliament in passing the Coroners Act 2003 (Qld) was to respond to the recommendations of RCIADIC: Explanatory Notes, Coroners Bill 2002 (Qld), 1.7

Limitations Upon Parties Making Submissions

28. Section 36 of the Act states:

(1) The following persons may appear, examine witnesses, and make submissions, at an inquest -

1. a police officer, lawyer or other person assisting the Coroners Court;
2. the Attorney-General;
3. a person who the Coroners Court considers has a sufficient interest in the inquest.

29. In Annetts v McCann (1990) 170 CLR 596, the High Court considered s 24(1) of the Coroners Act 1920 (WA) which provided:
    

    At any inquest, any person who, in the opinion of the Coroner, has a sufficient interest in the subject or result of the inquest –

    1. may attend personally or by counsel; and
    2. may examine and cross examine witnesses.

30. The effect of this section was described by the majority of the Court as giving ‘interested parties the absolute right to attend the inquest, to examine and cross-examine witnesses, and to be represented by counsel’: at 600 (Mason CJ, Deane  and McHugh JJ).

31. The Court also held that persons had the limited right, by reason of the common law right to natural justice, to make submissions in respect of matters which may be the subject of adverse findings against them: see 601.

32. It is significant in the present context that s 36(1) provides explicitly for the right of parties with a ‘significant interest’ to make submissions. The limitation on that right that was held to exist in Annetts v McCann therefore does not apply.8

33. It has nevertheless been held that the right to make submissions under the similarly worded provisions of the Coroners Act 1995 (Tas) is ‘circumscribed by the sufficiency of the interest of the person seeking to exercise it’: R v Tennent; ex parte Jager (2000) 9 TasR 111, [11] 118.

34. A consistent view has been taken in the Coroners Guidelines, which state that leave granted to a party under s 36 may be limited to those matters in relation to which the person has an interest: p 8.9.

35. In the present case, the Commission has identified a number of issues in relation to which it has an interest by virtue of its statutory functions (affidavit of John von Doussa, [10]). Other matters may arise in the course of the inquest that similarly raise issues of human rights and racial discrimination and in relation to which the Commission has an interest. The Commission does not propose to make submissions on matters that fall beyond the scope of its interest.

36. Whatever view is taken of the limits that may exist, or be imposed by a coroner, on the rights of parties to make submissions in the inquest, such limitations do not prevent the Deputy State Coroner from receiving submissions from parties on issues raised generally in the inquest where those submissions may assist the Deputy State Coroner coroner in reaching her findings and/or making any comments. A coroner is entitled to inform her/himself in any way s/he considers appropriate: s 37(1). Particularly in relation to broader systemic issues about which a coroner may wish to comment pursuant to s 46(1), a coroner may be assisted by submissions from those appearing in the inquest with relevant knowledge and expertise.9

37. The Commission submits in the present matter that it will be able to make submissions in relation to issues arising in the inquest that will materially assist the Deputy State Coroner. In particular, the Commission’s expertise in the field of human rights, including specialised knowledge relating to the rights of persons held in detention and the rights of Aboriginal people, will be of material assistance to the Deputy State Coroner.

C. Propensity Evidence

38. On the information presently available to the Commission, it does not seek to make submissions on the admissibility of propensity evidence in the current proceedings. The Commission does not seek access at this time to Senior Sergeant Hurley’s Disciplinary Records.

39. [This paragraph has been removed, consistent with a ruling of the Deputy State Coroner].

40. In the event that the Deputy State Coroner decides to admit propensity evidence in these proceedings, it may be appropriate for that evidence to be given in closed court pursuant to an order under s 35(1) and subject to a non-publication order pursuant to s 41 to protect the right of Senior Sergeant Hurley to a fair trial10 should criminal proceedings be instituted against him.

D. Use in the Inquest of Evidence Adduced on Palm Island on 28 February 2005

41. The Commission submits that the evidence adduced on Palm Island on 28 February 2005 should not be used in the inquiry. It was apparent that a number of witnesses, most particularly Patrick Bramwell, Vera Snyder and Roy Bramwell, faced significant difficulties in giving their evidence by reason of cross-cultural miscommunication (see further below) and it would be preferable for the process of hearing evidence to commence afresh.

42. Linguist Dr Diana Eades, writing about communication difficulties faced by Aboriginal people in Queensland observes:
    

    Official legal transcripts (of police interviews or court hearings) do not record hesitations or dysfluencies. Thus where Records of Interview are relied upon or where further legal proceedings, such as appeals, use earlier transcripts as evidence, there is no recorded evidence of the extent to which a witness may have experienced difficulty in handling the questioning. Clearly, this omission could disadvantage any witness, but it is particularly relevant to Aboriginal witnesses many of whom lack basic communicative competence in the questioning process.11

43. Hearing all of the witnesses again will avoid this particular disadvantage identified by Eades. It will enable the Deputy State Coroner to make assessments of the demeanour of witnesses which (while needing to be carefully assessed in light of the cultural issues identified below) may be relevant in making assessments as to credibility and, indeed, the proper meaning to be given to the words spoken by a witness.

44. In the event that the Deputy State Coroner is minded to receive some of transcript from 28 February 2005 into evidence, the Commission submits that the evidence of Patrick Bramwell, Vera Snyder and Roy Bramwell was attended with particular difficulty (for the reasons outlined below) and should not be included.

E. Venue

45. The Commission has no difficulty with the holding of the Inquest on Palm Island in its entirety.

F. Submissions in Relation to Obviating or Reducing Problems Relating to Miscommunication with Witnesses

46. The communication difficulties that may be faced by Aboriginal people in the legal system have long been recognised.12 In the Queensland context, these have been well documented by Eades13 and the Criminal Justice Commission (CJC).14

47. It can be accepted that that there are a range of distinct characteristics of Aboriginal English and common features of the manner in which many Aboriginal people communicate which may lead to miscommunication if not recognised.15 It is vital for such miscommunication to be avoided in the context of the present matter to ensure that the Deputy State Coroner is able to effectively investigate the death the subject of the inquest.

48. The CJC has noted that common problems faced by Aboriginal people as witnesses include:

    • Many Aboriginal people are extremely intimidated by the court process, some to the extent that they freeze in the witness box and are unable to give evidence (particularly in cases of a sensitive nature such as a sexual assault).
    • Many Aboriginal witnesses have difficulty in fully understanding the questions put to them in court and in expressing themselves clearly in language that the court can understand. Unfamiliar legal concepts can cause particular difficulties.
    • Many Aboriginal witnesses give apparently contradictory answers in evidence, which in some cases suggests that the witnesses have agreed with them whatever the questioner has put to them.
    • Aboriginal people commonly avoid direct eye contact, which may be misinterpreted in court as deviousness or lying.
    • Many Aboriginal witnesses give specific information such as numbers, dates and times in qualitative and relational terms rather than in mathematical terms.16

49. The common tendency of Aboriginal witnesses to agree with propositions put to them, even when they do not agree with the proposition, is described by Eades as ‘gratuitous concurrence’ and is an issue of particular difficulty in proceedings where witnesses are to be cross-examined.17

50. The Court is not bound by the rules of evidence (s 37(1)) and has the power to give directions and make orders that the Court considers appropriate for the conduct of the inquest (s 35(1)). The Commission submits that there are a number of measures that can be taken by the Deputy State Coroner to reduce the problems that might confront Aboriginal witnesses in the present case.18 These are listed below. The appropriateness of the measures suggested may vary from witness to witness according to the ‘bicultural literacy’ of the particular witness. The Deputy State Coroner may be assisted in making an assessment of the bicultural literacy of witness in the present matter by inquiries made of the witness by counsel assisting before that witness is called to give evidence.19 Of course, individual witnesses may also have suggestions as to measures that may be taken to enable effective communication with the Court and counsel.

51. The Commission also acknowledges that its suggestions are largely informed by the literature available, much of which is general in its scope. Members of the Palm Island community (such as representatives of the Palm Island Community Council) may be able to make other suggestions that are appropriate in the context of the culture and language of people from the Community which, while having common features with other Australian Aboriginal cultures, may also have distinct features.

52. The Commission submits that the following measures may assist the Court in informing itself in this matter:

(a) The use of a ‘witness assistant’ who would have the right to speak to clarify uncertainty when a witness is giving evidence or request appropriate rephrasing of questions.20

An appropriate person may be available from within the Palm Island community. The Commission suggests that the use of such a person would be preferable to clarification of matters from the bar table as was necessary during the taking of evidence in this matter on Palm Island 28 February 2005 (see, for example, T 73.35).

(b) A direction that the evidence-in-chief of witnesses be given, wholly or partly, in ‘narrative form’.21

‘Narrative form’ allows a witness to give their evidence outside the ‘question-and-answer’ format, or ‘without being tied to answering particular questions’.22

Particularly where witnesses may have limited literacy, it is also suggested that this approach is more satisfactory than asking witnesses to identify and adopt written statements made by them. This approach caused problems for a number of witnesses giving evidence in this matter on Palm Island on 18 February 2005 (see T 68-69, 75-76; T126).

(c) Limitations on the asking of leading questions of Aboriginal witnesses.

It may be appropriate with some witnesses to ask leading questions. However, gratuitous concurrence (as noted above, a recognised feature of communication by Aboriginal people) to leading questions may potentially render the evidence of a witness useless to the Court. This may hinder the Deputy State Coroner in the discharge of her duties to investigate this death.

The CJC has observed that fairer and more effective modes of questioning are available, and counsel should be required to adopt those modes of questioning before resort is had to leading questions. The Court should disallow leading questions ‘if it is satisfied that the facts would be better ascertained if leading questions were not used’.23

Such an approach is consistent with the recognised power (and duty) of a Court to control proceedings.24 In Mooney v James [1949] VLR 22, Barry J stated (at 28):

In the exercise of his power to control and regulate the proceedings the Judge may properly require counsel to abandon a worthless method of examination… it is the duty of the Judge to regulate and control the proceedings so that the issues for adjudication may be investigated fully and fairly.

The CJC notes that leading questions asked of Aboriginal witnesses were disallowed in a criminal trial in the Northern Territory Supreme Court except where such questioning was:

• Necessary to put counsel’s instructions; and
• Every other effort to get the particular witness to concede those matters has failed.25

The Commission submits that the same approach will be appropriate with Aboriginal witnesses susceptible to gratuitous concurrence in the present case.

(d) Other directions for the questioning of witnesses.

To ensure the fair and effective questioning of Aboriginal witnesses, the Deputy State Coroner may also wish to make a number of other directions that recognise features of Aboriginal communication which may create difficulties in a legal/court setting. These include:

• That simple language be used and legalese be avoided.26
• That long questions be avoided and questions not be asked involving more than one proposition.27 Either/or questions should be avoided.28
• That witnesses not be required to state times and dates in ‘mathematical’ terms, but be allowed to give relative times and dates (eg ‘before breakfast’, ‘before the store opened’, ‘the day before’) unless the ‘mathematical’ time of an event is significant.29 Witnesses should generally be questioned in such relative terms unless they demonstrate a familiarity with mathematical time or precise times are important (eg ‘You saw him before breakfast?’). Where precise times are important it may still be appropriate to first establish a relative time.
• That non-verbal responses (nodding and other gestures which form important parts of Aboriginal communication) may be read on to the record rather than requiring the witness to repeat their answer verbally. It may be appropriate for counsel or the Deputy State Coroner to read such responses onto the record (for example, ‘the witness has nodded in agreement’).

G. Privilege Against Self-Incrimination

53. Counsel assisting has raised for argument the issue of whether or not the Deputy State Coroner ought require Senior Sergeant Hurley to give evidence in the event that he were to claim privilege.

54. Section 39 of the Coroners Act provides relevantly:

1. This section applies if a witness refuses to give oral evidence at an inquest because the evidence would tend to incriminate the person.
2. The coroner may require the witness to give evidence that would tend to incriminate the witness if the coroner is satisfied that is in the public interest for the witness to do so.
3. The evidence is not admissible against the witness in any other proceeding, other than a proceeding for perjury.

55. Recommendation 12 of RCIADIC states:
    

    That a Coroner inquiring into a death in custody be required by law to investigate not only the cause and circumstances of the death but also the quality of the care, treatment and supervision of the deceased prior to death.

56. Michael Dodson, the then Aboriginal and Torres Strait Islander Social Justice Commissioner, has argued that ‘a coroner cannot satisfy this recommendation if the police or prison officers involved invoke their privilege against self-incrimination and refuse to give evidence at the inquest’: Indigenous Deaths in Custody 1989-1996 (1996), 230.

57. The Commission has noted above that it is consistent with human rights principles that a full and thorough inquiry be conducted into a death in custody. The Commission submits that the Deputy State Coroner’s ability to do so may be significantly limited in the event that Senior Sergeant Hurley were to claim privilege. There may therefore be a significant public interest in the exercise of the Deputy State Coroner’s power under s 39(2) to compel Senior Sergeant Hurley to give evidence.30 The extent to which this is so may depend upon what other evidence is received at the inquest and the stage at which privilege is claimed. The Commission may seek to make further submissions in the event that privilege is claimed.

58. In the event that the Deputy State Coroner is minded to compel the giving of self-incriminating evidence, it may be appropriate for that evidence to be given in closed court pursuant to an order under s 35(1) and subject to a non-publication order pursuant to s 41 to protect the right of Senior Sergeant Hurley to a fair trial should criminal proceedings be instituted against him.

H. Naming of the Deceased

59. The Commission understands that the family has requested that the deceased be referred to by his Aboriginal tribal name, Mulrunji. The Commission submits that it is appropriate that the deceased be referred to by this name throughout the proceedings unless it is necessary to refer to the deceased by another name for the purposes of identification by witnesses (as was the case in the questioning of witnesses on 28 February 2005 on Palm Island: see, for example, T 114.20).

60. Commissioner Johnston in the RCIADIC report  suggested that
    

    respect for the traditional, cultural values of Aboriginal people should be shown regarding the publication of the name of a deceased Aboriginal person, irrespective of the cause of death. Advice sought from the family of the deceased or their legal representative should provide guidance for the exercise of a coroner’s discretion in considering this matter.31

I. Submissions in Relation to s 48 of the Coroners Act

The Right to Make Submissions

61. Section 48(2) provides:
    

    If, from information obtained while investigating a death, a coroner reasonably suspects a person has committed an offence, the coroner must give the information to –
    
    (a) for an indictable offence – the director of public prosecutions; or
    
    (b) for any other offence – the chief executive of the department in which the legislation creating the offence is administered.

62. The Commission submits that the Court may be assisted by, and is able to receive, submissions from the parties and counsel assisting in relation to whether the Deputy State Coroner should reasonably suspect that a person has committed an offence.

63. The Commission notes, however, the decision of the Tasmanian Supreme Court in R v Tennent; Ex parte Jager (2000) 9 TasR 111, in which counsel assisting the coroner and counsel for the relatives of the deceased indicated an intention to make submissions to the Coroner that she should report to the Attorney-General a belief as to the commission of an indictable offence pursuant to s 30(3) of the Coroners Act 1995 (Tas). That section provides that a coroner ‘must report to the Attorney-General if the coroner believes that an indictable offence has been committed in connection with a death which the coroner investigated’. Cox CJ held (at [12] 118):
    

    In my view, the submissions of counsel in their addresses to the Coroner should be confined to the matters relevant to the factual findings which she is required to make and should not address the issue of any belief which she might form as to the commission of a crime committed in connection with a death which she has been investigating.

64. The Court issued a Writ of Prohibition to prohibit the Coroner from giving effect to her ruling that she would hear submissions on this issue (at [12] 118). It appears that counsel assisting was included in the scope of this prohibition.

65. The basis for the reasoning of Cox CJ would appear to be twofold. First, the Court found the statutory prohibition against a coroner stating a finding of criminal liability to be relevant:
    

    The focus of an inquest conducted under the Act being the ascertainment of facts without deducing from those facts any determination of blame, and the mischief sought to be avoided being the public naming of persons as suspected of criminal activity when they may never be charged, submissions to the coroner that he or she should form a belief that a named person has committed an indictable offence in connection with a death being investigated by the coroner would serve little purpose but to frustrate the intention of Parliament by attracting the very attention from the press and the public which the prohibition seeks to avoid. True, such submissions do not have the same force as a public statement of belief by the coroner and can presumably do less damage, but they clearly have a potential to prejudice the person named.

66. Second, the Court took the view that neither the party as risk of being named in the report to the Attorney-General, nor the family of the deceased, had sufficient interest in the formation of a belief by the coroner as to the commission of an offence (see [8] 116-7; [11] 118).

67. In the present matter, the Commission nevertheless submits that the Deputy State Coroner is entitled to receive submissions from the parties if they will be of assistance to the Court. The first aspect to the reasoning of Cox CJ in R v Tennent can be dealt with by the hearing of submissions in closed court (pursuant to a direction under s 35). The second aspect of his Honour’s decision does not, with respect, provide a basis for refusing to hear submissions if they are otherwise of assistance to the Court – it goes only to whether or not parties should be considered to have a right to make submissions.

68. The Commission submits that the Deputy State Coroner should not make any statement as to any action taken under s 48(2) by way of giving of information so as to avoid any potential contravention of ss 45(5) and 46(3) of the Act.
    

    The Ambit of s 48(2)

69. The Commission submits that the scope of s 48(2) is not limited to offences connected with the death under investigation. The wording of the section is clear and there is no basis for importing any limitation into it. Such an approach is consistent with the protection of human rights as it will increase the likelihood that breaches of human rights that may be exposed in the course of a coronial inquest (but not directly connected with the death under investigation) will be fully and properly investigated.
    

…………………

Jonathon Hunyor

Human Rights and Equal Opportunity Commission

18 March 2005

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Footnotes

Last
updated 25 August, 2006