Coroner Considers Applications for Leave to Make Submissions on Charter of Rights in Police Shooting Inquest

Inquest into the Death of Tyler Cassidy: Ruling on applications to be granted leave to participate as Interested Parties pursuant to s 56 Coroners Act 2008 (4 March 2010)

The Coroner's Court of Victoria recently considered applications by three public interest bodies for leave to appear as interested parties in the inquest into the death of Tyler Cassidy.  The applications were made pursuant to s 56 of the Coroners Act 2008 (Vic), which states that the coroner may give a person leave to appear as an interested person at an inquest if the coroner is satisfied that the person: (1) has a sufficient interest in the inquest; and (2) it is appropriate for the person to be an interested party.  In deciding whether or not to grant interested party status to the public interest organisations, the Coroner considered how the Court will approach the test in s 56.

Facts

Tyler Cassidy, a fifteen-year-old youth, was fatally shot by police on 11 December 2008 in Northcote Plaza.  A coronial inquest into the circumstances surrounding Tyler's death is to be held in 2010.  Issues to be addressed in this inquest will include (though are not limited to) the police approach to Tyler; what was known by the police involved in Tyler's death; what police could have reasonably known or ought to have known about him; police actions and the options available to them at the time; police policies, procedures and training; and the quality, nature and independence of the investigation into Tyler's death.  Three public interest bodies, Victoria Legal Aid (‘VLA’), Youthlaw and the Human Rights Law Resource Centre, applied for interested party status in the coronial proceedings on the basis that each could, by reason of their particular experience and expertise, assist the Coroner in exploring the issues to be raised during the inquest including, among other matters, the application of the Victorian Charter.

Decision

Under the 2008 Coroners Act, the new statutory test for a coroner to decide whether to exercise his or her discretion to grant of leave to interested parties is found in s 56.  Section 56 provides that leave may be given where a coroner is satisfied that the person seeking the leave has a sufficient interest in the inquest, and it is appropriate for that person to be given interested party status.  The test therefore has two limbs, both of which must be satisfied in order for leave to be granted.  This differs to the previous statutory test, which only required the coroner to find that a person had a ‘sufficient interest’ in order to be granted interested person status.

Two of the bodies seeking interested party status submitted to the Coroner that, given the strengthened and broadened role of coroners under the 2008 Act (which includes a focus on the coroner making effective recommendations that address systemic issues in connection to the death), the test for 'sufficient interest' had also been broadened by the new Act.

The Coroner did not agree with this argument and instead found that while the test for the granting of leave had not been broadened under the new Act, the new provisions relating to coroner's recommendations had widened the pool of people likely to express interest in being granted interested party status, as well as widening the pool of those being able to establish sufficient interest.  However, the Coroner found that the test under the new Act has an additional requirement, of 'appropriateness', meaning that even when a party can establish a sufficient interest in the subject matter of an inquest, if it is not considered 'appropriate' to grant that party interested party status, their application will be denied.

Appropriateness is not the subject of any further explication in the Act, but the Coroner outlined a number of issues which she felt should be taken into account when considering the 'appropriateness' of an application, including: ensuring the proceedings did not become unnecessarily protracted; assessing whether or not the interested parties were represented by competent counsel; whether there was clarity around the role the interested party wished to play; and whether, in the case of multiple public interest organisations seeking leave, each organisation would cover the same ground, or ground that would otherwise be covered by parties already represented at the bar table.

Discussion

The decision by the Coroner makes it clear that while a broader pool of public interest bodies may be able to show a sufficient interest in a coronial inquiry such to meet the first limb of the test for a grant of interested party status, this will not guarantee leave is given.  Instead, coroner's will look to the appropriateness of granting such leave in a way that considers the totality of the coronial proceedings, including the effect a granting of interested party status might have on the length of the inquest; whether the issues the interested party is seeking to instruct on will be adequately raised by other groups or individuals who are already represented; whether the delivery of expertise by the interested party can be done by way of appearing as a witness, rather than as apart of the bar table; and whether an applicant is represented by competent counsel.  In addition, the coroner can also exercise his or her discretion, in the granting of interested party status, to limit the role an interested party given leave can play in the proceedings.

Having regard to these factors, the Coroner granted leave to VLA and limited leave to the HRLRC.  Youthlaw was denied leave.

Penny Harris is a lawyer with Allens Arthur Robinson