- 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 –
- may attend personally or by counsel; and
- may examine and cross examine witnesses.
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).
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.
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
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,  118.
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.
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, ). 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.
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
- 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.
(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  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’).
The Commission notes that other issues may arise in the course of the inquest in relation to which the Commission has an interest and the Commission may seek to examine witnesses and make submissions in relation to such issues at that time.
Ian Freckelton, ‘Inquest Law’ in Selby (ed) The Inquest Handbook (1998), 9.
That case considered issues (not directly relevant to the present matter) under the Coroners Act 1985 (Vic) which contains a prohibition in the following terms: ‘A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence’.
Of course, it may be possible for a coroner to make more specific findings as to the nature of an ‘application of force’. Findings such as ‘A shot B in the head’ or ‘A punched B in the stomach’ are factual findings that do not breach the prohibition in ss 45(5) and 46(3) and a coroner may be required to make such findings pursuant to s 45(2)(e) of the Act.
Article 6, International Covenant on Civil and Political Rights (‘ICCPR’); Herrera Rubio v Colombia UNHRC 161/83; see also Joseph, Castan and Schultz, The International Covenant on Civil and Political Rights: Cases, Commentary and Materials (2004), [8.09] 162. The same approach to the right to life has been taken in the context of article 2 of the European Convention on Human Rights: see R v Her Majesty’s Coroner for the Western District of Somerset; ex parte Middleton  UKHL 10,  and the authorities cited therein; R v Secretary of State for the Home Department; ex parte Amin  UKHL 51,  – . This approach is also consistent with the duty to investigate and remedy breaches of article 7 of the ICCPR which prohibits (inter alia) cruel, inhuman and degrading treatment: Herrera Rubio v Colombia UNHRC 161/83, [10.5]; Joseph et al, [9.111]-[9.120].
Jumbunna Coal Mine NL v Victorian Coalminers’ Association (1908) 6 CLR 309, 363 (O’Connor J); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J); Kartinyeri v Commonwealth (1998) 195 CLR 337, 384  (Gummow and Hayne JJ). See also, Pearce and Geddes, Statutory Interpretation in Australia, (5th Ed, 2001), [5.14].
Consideration may be given to such material to confirm the interpretation conveyed by the ordinary meaning of the section: see Acts Interpretation Act 1954 (Qld) s 14B.
Compare also the position under the present Coroners Act 1996 (WA) which gives an ‘interested person’ the right to appear at an inquest and ‘examine or cross-examine witnesses’ and provides that ‘Before a coroner makes any finding adverse to the interests of an interested person, that person must be given the opportunity to present submissions against the making of such a finding’: s 44.
This is the approach that courts have taken in relation to the granting of leave to amicus curiae: see, for example, Levy v Victoria (1997) 189 CLR 579, 604 (Brennan CJ).
Dietrich v R (1992) 177 CLR 292; article 14(1) ICCPR.
Diana Eades, Aboriginal English and the Law, Queensland Law Society (1992), 54. Alter also notes difficulties that can be encountered in the transcription of evidence: Adam Alter, Aborigines and Courtroom Communication: Problems and Solutions, Australian Human Rights Centre Working Paper 2004/2 (2004), 13. In the event that transcript is received into evidence, it will be necessary for it to be checked carefully for accuracy.
See, for example, R v Anunga (1976) 11 ALR 412; Fry v Jennings (1983) 25 NTR 19; R v Kina (Unreported, Supreme Court of Queensland, Court of Appeal, Fitzgerald P, Davies and McPherson JJA, 29 November 1993). See also Stephanie Fryer-Smith, Aboriginal Benchbook for Western Australia Courts, Australian Institute of Judicial Administration (2002), part 7.4, pp 7:33-40; Alter, above n 13.
Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts (1996).
See Diana Eades, above n 13.
Above n 16, 11. See also Alter, above n 13.
Above n 13, 51-54. See also Alter, above n 13, 7-8.
Although the Coroners Court is not bound by the rules of evidence, the Commission notes that similar directions to those suggested by the Commission below could be made under the Evidence Act 1977 (Qld) which provides for directions to be made for the giving of evidence by a ‘special witness’ (s 21A) and for the disallowance of questions in cross-examination that are ‘improper’ (meaning ‘misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive’) taking into account matters including ‘age, education, level of understanding [or] cultural background…’ (s 21).
Eades provides a checklist for assessing bicultural competence: above n 13, 12.
See Criminal Justice Commission, above n 16, 47.
Criminal Justice Commission, above n 16, 49-51.
Ibid 49. See also Alter, above n 13, 11-12.
Criminal Justice Commission, above n 16, 53.
As noted above (see n 20), similar directions could be made pursuant to s 21 of the Evidence Act 1977 (Qld).
Criminal Justice Commission, above n 16, 52-53, citing Transcript of Proceedings, R v Kenny Charlie (Northern Territory Supreme Court, Mildren J, 28 September 1995) T210. The CJC provides examples of alternative forms of questioning that counsel may adopt to avoid unfair leading questions while also effectively challenging a witness and the evidence given by them.
See Eades, above n 13, 41.
Ibid 48; Criminal Justice Commission, above n 16, 23.
Eades, above n 13, 49-51.
It may also be noted that ss 39(4) and (5) give wide protection against derivative use of such evidence.
RCIADIC National Report, volume 1, [4.5.69] 149.
As noted above, the Commission has an interest in ensuring that allegations of breaches of human rights are fully investigated, including by prosecutorial authorities in relevant cases, to ensure the protection of those rights.