A reminder – Coroners are not bound by the rules of evidence!

Attorney-General v Copper Mines of Tasmania Pty Ltd [2019] TASFC 4 – This was an appeal by the Attorney-General to the decision by Estcourt J in Copper Mines of Tasmania Pty Ltd v Cooper[2018] TASSC 25.

Background

A coronial inquest is being conducted into the death of Mr Michael Welsh who was killed in a mud rush that occurred on 17 January 2014 at the Mount Lyell Mine. The Mine is leased by and operated by Copper Mines of Tasmania Pty Ltd (CMT). The operational mining activities at the relevant time were undertaken by a contractor, Barminco Ltd. Mr Welsh was employed by Barminco Ltd.

Worksafe Tasmania conducted an investigation into the mud rush, and in the process Mr John Webber prepared an expert report. The report contained complex and detailed information about safety at the mine, geological factors and other information relevant to the incident. In the report, Mr Webber referred to several technical and consultants’ reports (source documents) which were commissioned and received by CMT in the four years prior to Mr Welsh’s death. Ultimately, WorkSafe brought prosecution proceedings under the Work Health and Safety Act 2012 against CMT. The entirety of Mr Webber’s evidence was objected to and thrown out and the charges dismissed.

Subsequently, when the coronial inquest commenced, CMT sought again to exclude the evidence of Mr Webber and his report along with the source documents. In doing so, it contended that it would be denied procedural fairness on the basis that:

  1. the report failed to comply with the principles applicable to the admissibility of expert evidence;
  2. the source documents were being tendered without authors being called as witnesses; and
  3. Mr Webber was biased against CMT.

Findings

An inquest is an inquisitorial proceeding, and under section 51 of the Coroners Act 1995, coroners are expressly not bound by the rules of evidence, and may inform themselves in any manner that they reasonably think fit. The coroner has a duty to investigate the death of Mr Welsh and to try to find out how his death occurred, this includes investigating the circumstances leading up to the death, in order to consider making recommendations in regards to preventing further deaths.

The Full Court found that in relation to the report and Mr Webber’s oral evidence, it was reasonable for the coroner to receive these as they were likely to be capable of assisting in establishing how the death occurred. It still remains open to CMT to make submissions to the coroner as to the weight to be attached to Mr Webber’s evidence. It is also clear that bias on the part of a witness is not a ground for rejection of evidence by a coroner.

There was no denial of procedural fairness in relation to the source documents referred to in the report. CMT said that there was an inference that the authors of the source documents were not to be called at the inquest as they were not on the inquest witness timetable. However, there was no evidence the coroner would not be calling any of those authors or that he had ever been asked to arrange for them to be called. If the coroner had refused to call them, then there may have been grounds to challenge his refusal, but this had not occurred and the application in relation to the source documents was found to be premature.

Blow CJ said that given the source documents were commissioned and received in the four years prior to the incident, their contents and the value to the coroner in making recommendations had such potential importance that it is reasonable for the coroner to receive them as evidence. It remains open to the coroner to call an author of the source documents to give evidence to assist in understanding them, and also for the purpose of cross-examination.

Key points

  • Coronial inquests are inquisitorial in nature, not adversarial.
  • Coroners are expressly not bound by the rules of evidence.
  • There was no denial of procedural fairness in respect to Mr Webber’s report and and oral evidence, as he would be available for cross-examination by CMT.
  • The application in respect to the source documents was premature as no refusal to call the authors as witnesses had occurred.
  • Bias on the part of a witness is not grounds for rejection of evidence in a coronial inquest.
  • The source documents were received prior to Mr Welsh’s death and had such potential importance that it was reasonable for the coroner to receive them as evidence.

If you have any queries or would like further information regarding this article, please contact:

Anna Ashworth
Senior Associate
T: (03) 6235 5160
E: aashworth@pageseager.com.au

Published: 25 July 2019

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