Proposed amendments to the Coroners Act

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					                  THE LAW SOCIETY
                  OF NEW SOUTH WA LES




Our Ref: rbg572953

6 September 2011


Mr Laurie Glanfield AM
Director General
Department of Attorney General and Justice
OX 1227 Sydney



Dear Mr Glanfield ,

Proposed amendments to the Coroners Act

Thank you for seeking the Law Society's comments on proposed amendments to the
Coroners Act 2009. The Law Society's Criminal Law Committee has reviewed the proposed
amendments and makes the following comments for your consideration .

Proposed amendments 1, 2, 3. 5 and 7

The Committee has no concerns with these proposed amendments.

Proposed amendment 4. Section 78 - Procedure at Inquest or Inquiry involving
Indictable Offence

This proposal may create problems if identification. date, or time of death, are to be an issue
at a trial. At a minimum such findings should not be published.

Proposed amendment 6. Section 85 - Orders for Fresh Inquests of Inquires

The Committee is opposed to proposed amendment 6.

Current section 85

Section 85 currently provides that the Supreme Court may, on the application of the Minister
or any other person, make an order that an inquest or inquiry that has been (or that has
purportedly been) held be quashed and that a new inquest or inquiry be held if the Court is
satisfied that it is necessary or desirable to do so in the interests of justice because of fraud ,
or the rejection of evidence, or an irregularity of proceedings, or an insufficiency of inquiry, or
the discovery of new evidence or facts, or any other reason .

The recommendation that section 85 be amended to limit the grounds upon which the
Supreme Court may make such an order to questions of law, or alternatively to a narrower
list of grounds than under the current provision, is not supported .

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A question of law is very narrow, and while the current test is wide, it has to be in the
'interests of justice' which is a high hurdle. It is also very difficult to anticipate the range of
factual situations that may justify a fresh inquest.

The right to apply for a new inquest or inquiry is an important parallel to the Supreme Court
inquiry into a conviction. The procedural impediments to taking that course of action are
significant. While the review right exists now, if it was removed there could be appropriate
public interest inquiries, where there is new evidence, which would be precluded from
the section 69' statutory writ action as new evidence cannot amount to an error of law.

Country Energv v Deputv State Coroner Paul MacMahon [2010] NSWSC 943

In Country Energy v Deputy State Coroner Paul MacMahon [2010] NSWSC 943, Schmidt J
handed down a decision quashing an inquest and ordering a new inquest under section 85.
Country Energy provides a compelling case for the maintenance of a supervisory role for the
Supreme Court.

It is plain that mere dissatisfaction with a conclusion reached at an inquest is not enough:
see Country Energy at [40]. What must be established is the real possibility that the original
finding as to the manner and cause of death was erroneous, failing to achieve what an
inquest is meant to achieve, which is a reasonable objective of Supreme Court supervision.

Inquests often lead to criminal prosecutions. If the inquest is conducted in a manner that
requires it to be quashed in the interests of justice, then a criminal prosecution may be
entirely misconceived. Even without the criminal prosecution aspect, inquests can be terribly
damaging, so something more than error of law supervision is appropriate.

For ease of reference I have enclosed copies of the first coroner's deCision , the second
coroner's decision and Country Energy v Deputy State Coroner Paul MacMahon [2010]
NSWSC 943.

Lack of evidence to support the amendments

The reasons given in the document supporting the amendments are not very compelling in
the above context. In particular:

1. The current set of reasons for allowing an application to be made is entirely appropriate.
   The Committee is opposed to the removal of the right to quash an inquest because,
   while there is no error of law, the interests of justice require it (itself a high hurdle and
   gateway) because of fraud, rejection of evidence, irregularity of proceedings,
   insufficiency of inquiry, the discovery of new evidence or any other reason reaching to
   that high hurdle.

2. The notion that legally qualified coroners mean there is no need for a wider review
   process in the interests of justice is far from compelling . First of all, it is the non-legal
   review that is being sought to be removed , for which being a lawyer does not necessarily
   assist. Secondly, coroners preside over an inquisitorial process, not an adversarial
   process, and usually over deaths. It has a strong flavour of the role of the executive,



1 Supreme   Court Act 1970




2
    rather than a pure judicial process. The coroner often meets with the counsel assisting ,
    who in turn often relies on pOlice for his or her information.

    Magistrates acting in the criminal jurisdiction are subject to an appeal by rehearing as of
    right (sections 11 and 17 Crime (Appeal & Review) Act 2001). No error needs be made
    out and Magistrates are now all legally trained. Leave is required for fresh evidence to be
    called. What section 85 presently provides is still far short of any appeal as of right. It is
    an important residual supervisory safeguard.

3. Reference is made to bringing the Coroners Act 2009 in line with "most other
   jurisdictions", with only Victoria being specifically cited . This statement is incorrect.
   Victoria is the only jurisdiction to limit review by the Supreme Court (or District Court) to
   questions of law'.

The Department of Attorney General and Justice is currently considering enhanced judicial
review of administrative decisions 3 , with one of the arguments being academic research
indicating that there is a "psychological impact" of government agencies knowing that their
actions may be the subject of review. The Committee sees no less of a need for the coronia I
process. It is an important residual level of accountability which improves attention to due
process, even if only subliminally. The Committee is of the view that the removal of
reasonable accountability mechanisms imperils the quality of decision-making.

The Committee is not aware of any great proliferation of challenges to inquest findings. The
Committee is of the view that it would be a serious mistake to remove this level of
supervision from the Supreme Court, given that there is no other remedy for fundamental
error of a kind which it is in the interests of justice to rectify.

Officers of the Department of Attorney General and Justice may find it convenient to direct any
queries in relation to the submission to the policy lawyer with responsibility for this matter,
Rachel Geare, on 9926-0310 or by email at: rachel.geare@lawsociety.com .au.



Yours sincerely,

    ~ J~vf/L
Stuart Westgarth
President




' s 93 Coroners Act 1997 (ACT); 5 44 Coroners Act (NT); 5 50 Coroners Act 2003 (Old); 5 27 Coron ers Act 2003
(SA); 5 58A Coroners Act 1995 (Ta s), 5 52 Coroners Act 1996 (WA),

, Di scussion Paper: 'Re/orm   0/ Judiciol Review in NSW' NSW Departm ent of Attorney General & Justice, March
2011 .




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