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

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 8^th 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 8^th 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