Lindt Café Inquest, Part 12: A Coronial Court Is Not Judicial, Is It?

coroner

by Mary W Maxwell

In Part 6: “What Can Coroners Do?”, I laid out some of the features of the NSW coroner’s court. I emphasized that the judge’s task is limited to determining some aspect of a death, and that families of the decedents have a right to pursue questions. It was noted that the judge makes no ruling as to who might be blamed for the death, but should make recommendations.

That said, I am fascinated by my own inability to get a grasp on what is the real purpose of the current Lindt Café inquest.

Let us begin by noting that particular countries, and particular states, have varying rules. For example, a sheriff, or a justice of the peace might serve as the coroner.  In the US, some counties have no coroner but have a “medical examiner.” (And that person is not always a doctor!)

I think it is safe to say that the reason an official is assigned to do inquests is that there is often a “problem” regarding a death. A disaster, such as the capsizing of a boat or even an epidemic disease, may cause people to demand an explanation. So we turn to the officer of this traditional post, by default.

At the current inquiry the man in charge, Michael Barnes, is a Justice of the Supreme Court of NSW. (The same is true of the man in charge of the Royal Commission regarding Child Sexual Abuse, Justice Peter McClellan.)

In my view, the coronial “court” is not judicial. How’s that for confusing! Its main mission is a fact-finding one. (But remember: in the case of New South Wales, it is the Supreme Court that gives the order for an inquest to be held.)

The Setting

The venue for the siege inquest is a large room with no special decorations, on the 8th floor of a building in the Sydney CBD (fairly near Martin Place, actually). The judge’s bench at the front is raised. Each witness (after taking an oath) sits at a raised table and faces the judge diagonally.

There are about 20 or more lawyers, sitting in what I call the orchestra pit. They all dressed conservatively. All persons entering the room bow to the court, and we do so again upon leaving.  When the judge enters the room we are told to stand. Of the 30 seats in the gallery, about half are reserved for interested parties.

The judge sometimes orders the court to be cleared, which means that I get kicked out, but the families stay. I don’t know if media people stay. No one seems to be taking notes. I am there as a citizen. The “kicking out” is very polite.

Paperwork

Beginning in 2015, people made written submissions. Later, there are the hearings. “Counsel assisting” has organized all the written submissions, and poses questions to the witness based on these. A typical question would be “Please look at page 42J paragraph 3. You say you were standing near the back door at the time of the escape of hostages, is that correct?” “Yes.”

The siege inquest transcripts can be purchased for a dollar per page and a day’s hearing occupies about 100 pages. The clerk told me I could buy the whole set for $65,000. (Shades of Josée Lépine.) By contrast, regarding the Royal Commission, the public at home can see the hearings live-streamed, and can download transcripts for free.

I suspect that the media get transcripts of the siege inquest. A report the same evening – say, at smh.com.au — may give detailed quotes from the witness’ testimony. Or could they be recording the audio? Perhaps, but a sign in the gallery says “No photographing or recording.”

Whose law is that? It is within the judge’s discretion I imagine.  At the place where we register (“the Downing Center,” 147 Liverpool St.), a sign says “By judicial decision photographic identification must be shown to register for attendance.”

I have not yet guessed the purpose of identifying myself.  Each day they copy down my passport number but they don’t run it against a list of Undesirables, so why ask for it?

Is violence a concern? There are two uniformed guards in or around the courtroom (armed with a baton not a gun) who would presumably be able to tackle anyone who made trouble.

But Is It a Court?

A rose, by any other name, smells as sweet as a rose. However if you give the name “rose” to some other object – a pencil, for instance – that object won’t thereby acquire the scent of a rose. Australia calls its coroner’s courts courts, but that naming process does not mean the thing is really a court.

Excuse me for being fussy, but I am trying earnestly to figure out what is this thing on the 8th floor of the John Maddison Building. Members of the legal profession are there for sure. The judge is wearing a robe. The witnesses take an oath. As I said, we stand up and we bow. But that is not enough. It’s still not a rose.

Maybe it would be better to let a “coronial expert,” or a “Grim Reaper expert,” run the show instead of a judge. After all, it’s an inquiry. The task is to figure something out, not to adjudicate, not to make rulings, not even to set precedents.

Note: inquiries often take place without the judicial trappings of a court. Legislatures and town councils can inquire about almost anything; Parliament can summon unwilling testifiers.

I know what you’re thinking. You’re thinking that deaths are probably caused by a bad person or a bad practice — so it needs a heavy hand. It needs somebody who can apply principles. It needs a court.

Ah, but as I said, nobody is applying principles here, other than principles related to inquiring. And as I said, in the US the job might belong to a “medical examiner” who is usually, but not always, a physician. It is sometimes an elected office.

Is It a Powerful Job?

You want the person to be strong, right? I’ll bet what you mean is you want the man or woman in charge to be moral and honest and not to be pushed around. We know in our heart of hearts, do we not, that there might well be a lot of bad stuff lurking around the death in question? It would be ideal for the coroner to possess the kind of power that goes with righteousness.

Granted, sometimes there is no hint of wrongdoing. What if four people simply keeled over and died on the bus? Government should go to the effort of trying to solve the mystery. In this case you’d see that a judicial gown wouldn’t raise the tone of the proceedings — as there is no adversarial element, and no need to discipline anyone.

Still, many deaths that require an inquest are indeed related to naughty behavior.  Thus any wrongdoers will try hard to keep the truth from emerging. They may even beat up some potential witnesses. The public would hope that a court could step in to ameliorate that situation.

A Coronial Inquest in the UK Is Not a Rose

To see how circular the argument can become, look at the website of the City Council of Manchester, UK. The Council seems to want to help bereaved families – maybe. They say:

“It is very much in the public interest to have an effective inquest system.  It safeguards the legal rights of the deceased’s family and other interested persons, highlights lessons to be learned and advances medical knowledge.  Many families also find it helps to have the chance to ask questions and, at the end of the process, know that they have the full and accurate facts about their loved one’s death.”

Lovely. But then they admit:

“Please be aware that, by law, we can only look into matters which relate to the 4 questions that an inquest covers.”

This links you to another part of the website that says:

“An inquest is a public judicial inquiry to find the answers to a limited but important set of questions:

Who the deceased was

When and where they died

The medical cause of their death

How they came by their death.

I think it’s time we started to distinguish pencils from roses, and get on with the bigger issue of deaths that happen to be related to the actions of the powerful.

Are you with me?

Surprising Coronial Powers in North Carolina

Consider the death of Dr Jeff Bradstreet in the US. He had recently said he was hot on the trail of a cure for autism. Next he turns up dead, by gunshot, in a river. “Authorities” say it was suicide.

This was a rare situation where, thanks to a website called “Go Fund Me” the friends of Bradstreet, and many people who want a cure for autism, said “We ain’t having it.” The family insisted he would not dream of dying (at 60) as his autistic son had just graduated from high school and needed his Dad.

We all sensed foul play. The FDA had raided his office two days before. Will we find the FDA blamed for the death? Dr Bradstreet lived in North Carolina. The rules for coroners there say:

 (3) If it appears that the deceased was slain, or came to his death in such manner as to indicate any person or persons guilty of the crime in connection with the said death, then the said inquiry shall ascertain who was guilty, either as principal or accessory, or otherwise, if known; and the cause and manner of his death.

But recall that in Australia the findings of an inquest are not even allowed to be presented, subsequently, in a criminal or civil court.

Martin Bryant’s Case

Much has been made of the fact that the 35 deaths at Port Arthur did not result in any findings by a coroner. The magistrate in charge, Ian Matterson, started to investigate the case on the very afternoon of April 28, 1996.

Many months later he aborted the inquest on the grounds that a guilty plea had come in and a court had sentenced a man to prison for all 35 killings. Coroner Matterson said he was not allowed to counteract those court findings, per the 1957 law.

Cherri Bonney has very logically petitioned the government of Tasmania to hold an inquest (or a trial). My own view from attending merely one inquest in my whole life (talk about making generalizations) is that there is no point in having an inquest for Port Arthur.

I may be wrong. A coroner does have a mandate to establish the time and manner of death, and so far the manner of death of Sally Martin and Glen Pears is a mystery.

Coroners also look at circumstances that led to the death. Several people died during the Port Arthur massacre because they couldn’t escape through a particular exit of the Broad Arrow Café, thanks to a door lock that didn’t work properly.

Some say the door situation smacked of malice.  If so, is there not a better locus for working out the particulars? Would a coroner be strong enough to rush in where all sorts of angels and devils have feared to tread?

If you say Yes, I say Goodonya. There certainly should be that kind of person, working for the taxpayer.

I guess it boils down to whether an Australian coroner – who is always a judge or magistrate – feels his oats, so to speak. If he suspects wrongdoing he could at least yak about it. But, to repeat, he cannot rule a punishment for anyone.

— Mary W Maxwell’s Youtube channel is: Mary W Maxwell.

 

Photo credits:
Doctor – legalcareerpath.com
Coroner’s badge -- mec.lacounty.gov

 

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Comments

  1. Correction: I said that Mr Michael Barnes, the coroner, is a Justice of NSW Supreme Court. No, he is a Magistrate. He was the coroner in Queensland for 10 years prior to coming to NSW in 2013. I note from an article at Brisbanetimes.com.au, by Natalie Bochenski, that

    “Mr Barnes said he passionately believed the coroner’s office should be more closely allied to the police service than the Department of Public Prosecutions or the courts. ‘The police and the coroner are both investigating how did the death occur, and then other agencies decide what should be the consequence of that conclusion,’ he said.”

    Same view as mine!

    Also in Part 7 of this series (with photo of 16-year-old Sean), I quoted the coroner re construction workers. I didn’t realize I was quoting OUR coroner. Here is his comment, again, on perjury:

    “Submissions made on [the risk-assessor’s] behalf seem to acknowledge that his evidence was erroneous but suggest that was a result of stress rather than being “knowingly false”. In my view that is an issue for the DPP to consider when determining whether charges should be laid. Accordingly, I consider I am obliged to refer the information for the DPP’s consideration.”

    Same view as mine. But see:

    https://gumshoenews.com/2016/01/07/the-dpps-independence-you-could-knock-me-over-with-a-feather/

  2. Here is a new bit. When in Tassie, I heard peeps talking about the case of imprisoned Sue Neill-Fraser which they say is really a case of police corruption related to drugs. Please don’t ask me to look into it. The point for our purposes is that there really is a substantial conflict in the role of coroner if a case is “before the courts.” I now quote ABC, in 2014, re the Neill-Fraser case:

    “Last year, prominent criminal barrister Robert Richter QC wrote to the Attorney-General calling for a Commission of Inquiry, claiming key witnesses and documents were not drawn to the jury’s attention.

    “Tasmanian federal Independent, Andrew Wilkie, is continuing his push for a Commission of Inquiry. Mr Wilkie says Tasmanian law does not allow the Coroner to make a finding at odds with an associated criminal trial.

    “‘A number of the matters that were raised with the Coroner during his inquiry were outside of his jurisdiction and he makes the point that he was NOT ABLE [emphasis added] to look at that evidence and enquire into some of those matters,’ he said. “The concern in the community that’s raised with me by numerous constituents now [is] that they still have concerns that there are questions left unanswered.’

    “The Attorney General, Brian Wightman, has rejected calls for a Commission of Inquiry and says if Neill-Fraser has new evidence she should take it to the courts.”

    Dear Gumshoe readers, I hope you can guess that I side with the AG on that. New evidence belongs in the courts. As for Martin Bryant’s case, I think it , too, belongs in the courts today.
    What can be gained by begging help from a Coroner whose hands are tied?

    THE VERY SET-UP IS AMISS.

  3. Surely if a Coroner, in his inquiry comes across foul play or suspects foul play, his determination should be mandatorily acted upon by the investigating bodies of society. In other words a compulsory police investigation and trial. This may not be what the legal profession and politicians want, but are they not, in their positions to do the bidding of the people.(What is right for society.) The ridiculous situation whereby a coroner cannot come to a different conclusion to the court, when the court hasn’t seen or heard the relevant evidence is ludicrous. The laws need to be changed so that the coroner’s inquiry must be finalised before the trial starts. Otherwise the Coroner’s Inquiry is a toothless tiger.

    • Mal, just to clarify, I wasn’t crabbing about Inquests not having teeth. I’m OK with them not having teeth. I was crabbing that people get confused when they see a judge in a courtroom and the mandate is not for judicial stuff.

      In order to bring a criminal to justice we have a perfectly adequate judicial system. It’s just “none of the coroner’s business” to get involved in trials. (Do you agree?) But I take your point, which I also belabored in another essay, that a coroner should twig if anything of a foul-play nature seems to be getting studiously overlooked. Go, Judge!

      Last night a friend of mine in Lonnie said, after my “speech”, that a Parliamentary inquiry occurs only when they know the answer in advance. Hmm. I can recall US Sen Frank Church’s inquiry in 1975 re the CIA’s amazing tricks. “Did not know in advance!” … Sen Church was shown the door at the next election.

      BTW, Launceston is more gorgeous than Adelaide, and that’s saying something.

      • Stupid Mary. I should not have ventured in where I don’t have good background. Just chanced upon a case in Tasmania and found that the Coroner ended her inquiry into a child’s death by saying:
        “REFERRAL TO DIRECTOR OF PUBLIC PROSECUTIONS
        I intend to forward this finding, together with the evidence at inquest, to the Director of Public Prosecutions to determine whether Ms Howell and/or Mr Pearce should be charged with any crime or offence, and in particular whether their omission to check that Jasmine was safe in the bed and able to breathe amounted to culpable negligence to perform a duty tending to the preservation of human life and therefore culpable homicide.
        Dated: 27 May 2015 at Hobart in the State of Tasmania.
        Olivia McTaggart CORONER”

        Mal, I realize that the case you have in mind is Martin Bryant’s. I do not now dare say what a coroner could do for him. And that is aside from the odd fact that when the 1996 Port Arthur massacre occurred, it was the 1957 Coroners Act that was in force, not the 1995 Coroners Act, as its “date of coming into force” was delayed (probably by skullduggery) till after Martin was convicted.

        I note that the Change.org petition organized by Cherri Bonney is a demand for an Inquest re the Port Arthur massacre. She duly delivered the signatures to Will Hodgman (via Dr Goodwin) in MARCH, 2016, and has not had a reply.

        Would anyone who can set us right on this please do so?

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