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Beyond Investigation: Examining the Efficacy of Coronial Inquests in Addressing Systemic Racism

By Francesco Mercadante


**Please note this article includes the names of First Nations peoples who have died**



 

‘Over-represented’ is an unfortunate label for Australia’s First Nations Peoples. Our Indigenous community live approximately eight years less than the non-Indigenous population and make up 32% of our prisons despite only representing 3.8% of society. The Coroners Court is no exception to this over-representation as Indigenous deaths are investigated at higher rates than the non-Indigenous population.  Clearly, Australia is a society that is underpinned by race which has perpetually oppressed the world’s oldest civilisation. Yet, the saddening representation of Indigenous deaths in the Australian coronial system may also be a means to addressing this racism. Ultimately, if coroners can effectively utilise their inquests to repeatedly acknowledge systemic racism in the deaths of First Nations Peoples, then they may just ‘pave the way for much-needed social and administrative change.’


The Australian Coronal System


The coronal system is one of the oldest jurisdictions in Australia’s history, instituted when Governor Phillip was granted power to 'constitute and appoint…Coroners Constable’. 236 years later, the Coroners Court has entrenched itself as a pillar of the Australian Judiciary. Each State has their own coronial legislation which is largely similar outlining the coroner’s role as an inquisitorial one. In Victoria, the coronal system’s purpose is to investigate, all reportable deaths, all reviewable deaths, and all fires to decide how they occurred. In their last reportable year, the Corners Court finalised 7620 investigations. For the purposes of this article, only reportable deaths will be considered. A reportable death includes violent, unexpected deaths, accidental deaths, deaths of unidentifiable persons, unknown circumstances of deaths, deaths in healthcare, and deaths in custody. 


Who are Coroners?


Contrary to popular belief, a coroner is not a doctor and they do not require any form of medical qualification. Coroners are judges whose judicial function extends to determining an individual’s cause of death. Despite their lack of formal medical training, a coroner’s investigation is heavily assisted by an expansive range of professionals which often include, but are not limited to, the police, forensic pathologists, scientists, and medical officers. It is with this large assortment of assistance that a coroner will conclude their investigation. 


Coronial Outcomes 


At the end of an investigation into a death, the coroner must, if possible, find the identity of the deceased, the cause of death and the circumstances surrounding the death. Investigations can be finalised in two ways, the first and most common way is through a written report on the sum of the evidence the coroner has collected in their initial inquiries. If the coroner cannot determine these details from this evidence, they have the power to hold an inquest into the death. Additionally, a coroner must typically hold an inquest if the death is a suspected homicide, the death occurred in custody or care, or if the identity of the deceased is unknown.


Coronial Inquests


Like typical hearings, an inquest is held in the public. However, unlike typical court procedure, inquests provide the coroner with broad powers and relax the rules of evidence. For example, a coroner can decide to accept hearsay evidence or even directly ask the witness questions they want answered. With all of the evidence before them, a coroner will hopefully answer the remaining questions surrounding the death on the balance of probabilities. 


Coroners’ Official Power to Combat Racism


Coroners cannot determine criminal guilt or civil liability. Whilst they are able to refer individuals to disciplinary bodies or the DPP if they believe an offence has been committed, the standard for this finding is high and there is no guarantee that the referral will progress further. Officially and historically, the greatest way in which the coronal system can promote social change is through the coroner’s ability to make findings and recommendations to any entity to prevent the circumstances of death from reoccurring. In the last reporting period, the Coroners Court made 221 recommendations with 147 being accepted at the time of the report. 


The deeply saddening case of Naomi Williams reflects the power of recommendations as a method to address the endemic racism woven into Australian society. Naomi was a well-loved, proud Wiradjuri woman who was failed by the NSW health system. Not only was Naomi 27 years old at the time of her death, but she was also six months pregnant. As the rest of the world were bringing in the New Year on 1 January 2016, Naomi was driving herself to the hospital in extreme pain. This was the 19th time she had presented to the emergency room in the eight months before her death and not once had she been referred to a specialist. Like so many times before, Naomi’s pleas were ignored. She was monitored for 34 minutes. She was dismissed with two Panadol. Naomi and her child would die hours later from septicaemia. Despite being well known in the community, despite her grandmother previously working with the nurses who dismissed Naomi, despite showing unmistakable signs of septicaemia, Naomi was stereotyped as a drug user. In an unprecedented finding, Deputy State Coroner Harriet Grahame determined that ‘implicit racial bias’ contributed to her death. Further, Coroner Grahame used this opportunity to make strong recommendations to the Local Health District, many of which have been implemented. In the disturbing and ‘preventable’ death of Veronica Nelson, whose cries and physical representations of extreme pain were ignored by corrections officers and medical staff, Coroner Simon McGregor used his findings and recommendations to address some of the systems in place that disproportionately affect Indigenous people.  As of last week, NSW State Coroner Teresa O’Sullivan found that racial bias caused an insufficient investigation into the shocking deaths of Mona (16) and Cindy Smith (15) by the NSW Police Force in 1987. In this way, the theoretical reach of the coroner’s power to influence tangible change is certainly wide. 


Limits on Inquests


However, coroners can only reach so far as they are willing. Coroners have the power to widen or confine the scope of their inquest as they please. Some inquests, such as for Naomi Williams or Tanya Day, have allowed for a wide scope so as to include the question of whether race played a role in the deaths of these individuals. Unfortunately, most coroners opt for a tight inquest, strictly confined to the cause of death, and actively ignore the blatant racism that Indigenous people face. Even when coroners do widen the scope of their inquest, there is still a hesitation to attribute race to findings. 


Another issue with inquests is their lack of enforceability. As their name implies, recommendations carry no legal weight, and, in that sense, can be seen as merely a token gesture. In certain states and the territories, this is slightly remedied in legislation as the entity is forced to at least respond to the recommendations made. In states without this provision, inquests’ theoretical power are neutered by the fact that recommendations do not need to even be considered. Whilst there have been limited recommendations to address systemic racism that have arisen out of coronial inquests, an analysis of the implementation of the recommendations in the Royal Commission into Aboriginal Deaths in Custody provide a sobering reality check. Despite the publicity of the Commission, very few of the 339 strong recommendations that were made have been implemented over 35 years later. Clearly, there is a general  avoidance within the Australian systems of power to address the perpetual oppression of Indigenous peoples.


A Solution in Technology


Despite these limitations, modern technology and social media may be an effective method in propelling the social effectiveness of the Coroner’s Court. The strongest use of the media is the ability to report on inquests live and disseminate the cases to a bigger audience than ever before. This is demonstrated from the heightened publicity afforded  to prominent and erroneous First Nations’ deaths. One example can be found in the appalling case of 55-year-old Tanya Day, a proud Yorta Yorta woman. In 2017, Tanya was taking a V-line train to visit her pregnant daughter. She fell asleep during the journey. Assuming the worst, Ms Day was interrogated by the train driver who notified the police that she was publicly intoxicated. At the inquest, the conductor gave evidence that he had done so because Ms Day was acting unruly. Multiple witnesses attested to the inverse. Ms Day was arrested and placed in a cell at Castlemaine police station. Despite being under an obligation to physically assess Ms Day, the officers did not. Ms Day stumbled, fell, hit her head, causing a brain haemorrhage. This occurred at 5:00pm. Officers did not check on her until 8:03pm when they finally transported her to hospital. Ms Day died 17 days later. Although Coroner Caitlin English found that Tanya Day’s Aboriginality was not a factor in her death, the case was heavily broadcasted. Large news outlets such as The Guardian tweeted extensively as evidence was being presented, causing public outrage. 


Most powerfully, however, was the way in which CCTV footage of Ms Day’s last moments was able to be broadcasted, showing the blatant disregard for her wellbeing. Although highly disturbing, the dissemination of CCTV footage allows the public to see, for themselves, the extent of the suffering endured by the Indigenous population. Another example can be seen in the footage of the death of David Dungay, a proud Dunghutti man.


Finally, the use of the media can propel the Indigenous voices of the families who are irreparably scarred by the death of their loved ones. Most recently, Ricky Hampson Snr was able to address the media after each day of the inquest into his son’s death, he like many others, was misdiagnosed in a rural hospital.


Conclusion


Concluding the effectiveness of Australia’s coronial system is difficult. On one hand, coroners are given the means and the platform to explore the unconscious biases that are woven into Australian society. Yet, the historic unwillingness and possible fear of recognising this systemic racism has inhibited impacts that the Coroners Court has. In moments of disappointing findings, however, modern uses of technology and media can be used to allow the public to see this oppression themselves. Fortunately, findings like that of Naomi Williams reveal a hopeful and shifting narrative. More than 36 years after his death and two previous non-conclusive inquests, a new inquest has been launched to re-examine the historic case of Mark Haines - a young Gomeroi teenager. Mark was failed by Tamworth police who quickly dismissed the case as a suicide despite extremely suspicious circumstances. Whilst the inquest has just been adjourned for further investigation, it is unlikely that Deputy State Coroner Grahame will be able to determine the exact cause of death. However, if she finds that racism played a determinative factor in the unsatisfactory investigation, not only will Mark’s family finally be vindicated, but the recognition of systemic racism can continue to stoke the fire of eventual change. 


References


A Articles/Books/Reports


Belinda Carpenter et al, ‘Coronial Inquests, Indigenous Suicide and the Colonial Narrative’ (2021) 29 Critical Criminology 527 

Bianca Philips et al, ‘The Coronial System and Determining Manner of Death in Australia’ (2015) 5(3) Academic Forensic Pathology 436

Chief Justice Marilyn Warren, ‘Foreword’ in Ian Freckelton and David Ranson, Death Investigation and the Coroner’s Inquest (Oxford University Press, 2006)

George Newhouse, Daniel Ghezelbash and Alison Whittaker, ‘The experience of Aboriginal and Torres Strait Islander participants in Australia’s coronial inquest system: Reflections from the front line’ (2020) 9(4) International Journal for Crime, Justice and Social Democracy 76 

George Newhouse et al, ‘Strategic Litigation and Racism in Healthcare’ (2024) 11(2) Griffith Journal of Law & Human Dignity 55

Ray Watterson, Penny Brown and John McKenzie, ‘Coronial Recommendations and The Prevention of Indigenous Death’ (2008) 12(2) Australian Indigenous Law Reporter 4

Rebecca Scott Bray and Greg Martin, ‘Exploring fatal facts: current issues in coronial law, policy and practice’ (2016) 12(2) International Journal of Law in Context 115

Rebecca Scott Bray, ‘Contested Deaths and Coronial Justice in the Digital Age’ (2020) 9(4) International Journal for Crime, Justice and Social Democracy 90.

Rebecca Scott Bray, ‘Death investigation, coroners’ inquests and human rights’ in Leanne Weber, Elaine Fishwick and Marinella Marmo (eds), The Routledge International Handbook of Criminology and Human Rights (Routledge, 2016) 146


B Legislation

Coroners Act 2009 (NSW) 

Coroners Act 1993 (NT) 

Coroners Act 2003 (Qld) 

Coroners Act 2003 (SA) 

Coroners Act 1995 (Tas) 

Coroners Act 2008 (Vic) 

Coroners Act 1996 (WA)


C Other


Australian Institute of Health and Welfare, ‘Contact with the criminal justice system’, (webpage, 30 June 2022) <https://www.indigenoushpf.gov.au/measures/2-11-contact-criminal-justice-system

Australian Institute of Health and Welfare, ‘All-cause age-standardised death rates’, (webpage, 30 June 2022) <https://www.indigenoushpf.gov.au/measures/2-11-contact-criminal-justice-system

Calla Wahlquist, ‘'Objective truth': what the Tanya Day footage shows minute by minute’, The Guardian (webpage, 7 September 2019) <https://www.theguardian.com/australia-news/2019/sep/07/objective-truth-what-the-tanya-day-footage-shows-minute-by-minute>

Coroners Court of Victoria Annual Report 2022-2023 (Report, November 2023)

‘History’, Coroners Court New South Wales (webpage, 26 June 2023) <https://coroners.nsw.gov.au/history-and-values/history.html

‘'I can't breathe': footage shows David Dungay's death in custody – video’, The Guardian (webpage, 16 July 2018) <https://www.theguardian.com/australia-news/video/2018/jul/16/i-cant-breathe-footage-shows-david-dungays-death-in-custody-video>

Inquest into the Death of David Dungay (Coroner’s Court of New South Wales, Deputy State Coroner, Magistrate Derek Lee, 22 November 2019)

Inquest into the Death of Ms Dhu (Coroner's Court of Western Australia, State Coroner Fogliani, 16 December 2016)

Inquest into the Death of Naomi Williams (State Coroner’s Court of New South Wales, Deputy State Coroner Grahame, 29 July 2019) 

Inquest into the Death of Tanya Louise Day (Coroner’s Court of Victoria, Deputy State Coroner, Caitlin English, 9 April 2020)

Inquest into the Death of Veronica Nelson (Coroner’s Court of Victoria, Coroner Simon McGregor, 30 January 2023)

Marlan Zaarkacha, ‘Ricky Hampson Died Just Hours after Leaving Dubbo Hospital. His Family Believe Racial Prejudice Was a Factor’, ABC News (webpage, 3 July 2023) <https://www.abc.net.au/news/2023-07-03/inquest-indigenous-man-ricky-dougie- hampson-junior-death-dubbo/102555672> 

‘MEDIA RELEASE: INQUEST INTO THE DEATH OF MARK HAINES BEGINS 36 YEARS AFTER MYSTERIOUS DEATH’, National Justice Project (online, 8 April 2024) <https://www.justice.org.au/inquest-into-the-death-of-mark-haines/https://www.justice.org.au/media-release-mona-and-cindy-smith-inquest/>

‘MEDIA RELEASE: MONA AND CINDY SMITH INQUEST – HISTORICALLY SIGNIFICANT FINDINGS ANSWER UNRESOLVED QUESTIONS DECADES TOO LATE’, National Justice Project (online, 23 April 2024) <https://www.justice.org.au/media-release-mona-and-cindy-smith-inquest/>

Melinda Hayter, ‘New Bias Concerns Emerge at Hospital Two Years after Inquest’, ABC News (online, 30 August 2021) <https://www.abc.net.au/news/2021-08-31/naomi-williams-mother-calls-out-ongoing- indigenous-bias-health/100417522>

National Justice Project, ‘Inquest Into The Death Of Mark Haines Begins 36 Years After Mysterious Death’, Media Release (webpage, 8 April 2024) <https://www.justice.org.au/inquest-into-the-death-of-mark-haines/>


 

Francesco Mercadante is a Fourth Year Student Studying Law and Arts, majoring in History. 


He is currently undertaking a Placement at the National Justice Project, a human rights law firm specialising in off-shore detention and First Nations Justice. 


Francesco has a strong passion for advocacy and is a firm believer of amplifying the voices of those who need it most. Francesco's work in human rights has allowed him to see the impact lawyers can have on addressing injustice in the modern world and plans on doing so throughout his career. 

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