Papua New Guinea Legislation Index

The Magisterial Service in conjunction with the Law and Justice Sector Program (LJSP) developed and produced this Manual for use by Coroners, Magistrates, Judicial Officers, Police, Court Officers, Medical Practitioners, Lawyers and Others who may have some interests directly or indirectly in the functions and the operations of the coroners court in Papua New Guinea (PNG).

This project is funded jointly by the Magisterial Service and the LJSP under the auspices of the Australian Agency for International Development (AusAID). The LJSP is a five-year design-implement program of support for the PNG law and justice sector, which also includes the Magisterial Service. Its goal is to increase the responsiveness of the justice system to community needs.

One of the projects under the LJSP was to develop and produce a Coroners Manual on Practice and Procedure for Coroners in Papua New Guinea. It is anticipated that this Coroners Manual will assist Coroners, especially Magistrates in the performance of their duties and the discharge of their coronial functions and responsibilities. It is also intended that the Manual will bring about some uniformity and standardization into the practice and procedure of the coroners court in Papua New Guinea.

The Manual is also designed to assist other users such as the Police, Medical Practitioners, lawyers and others who may be associated with the work of a Coroner.

Numerous workshops including wider and extensive consultations were undertaken with various stakeholders, government agencies and other counterparts prior to developing this Manual. This Manual is a product of their efforts. I am proud to say that this is a truly “home-grown” Coroners’ Manual as it is based largely on Papua New Guinea’s ideologies, beliefs and practices.

The Manual also covers areas such as a glossary of legal and medical terms, investigations, post mortems, inquests and findings, some case laws, Practice Directions and commonly used forms. A copy of the Coroners Act 1953 and Regulations is also included to form part of the Manual.

Many magistrates, individuals, agencies, stakeholders and counterparts throughout Papua New Guinea contributed in one way or another towards the development of this Manual. It will be a remiss of me not to thank them each and severally. May I take this opportunity to sincerely thank firstly, the Port Moresby City Coroner Mr. Lawrence Kangwia for his tireless effort and leadership in this project and his counterpart Mr. Nick Raicevic, the Consultant/Advisor under the LJSP for writing the Manual and putting it altogether. I also wish to express my thanks and gratitude to Mr. Graeme Johnstone – Victorian State Coroner and Associate Professor David Ranson - Deputy Director of the Victorian Institute of Forensic Medicine for their contributions and expert advice in the development of this Manual.

I wish to also acknowledge the contributions of Dr. Philip Golpak – Pathologist, Port Moresby General Hospital, Chief Superintendent Thomas Eluh of the Police Headquarters and Mr. Molean Kilepak of the Attorney-General’s Department.

Within the Magistracy, I extend my gratitude to the Magistrates Training Advisory Group and those selected magistrates who were involved in the numerous workshops and consultation processes to prepare and produce this Manual.

Finally, I wish to also take this opportunity to express my sincere thanks and appreciation to the people and the government of Australia through their aid agency AusAID under the LJSP for funding the bulk of the costs associated with this project.

I am confident that the Manual will prove to be an invaluable tool and useful for Coroners and other users throughout Papua New Guinea as they go about their most difficult and demanding task of conducting investigations into deaths, fires and missing persons. I present this Manual to you all.

ABBREVIATIONS AND ACRONYMS

1.0 INTRODUCTION

This manual will assist Coroners and all those who participate in coronial enquiries to better understand the coronial process. The aim of the manual is to explain the role that coroners play within the PNG legal system and the processes, practices and procedures involved in coronial investigations.

The primary role of the coroner is to investigate certain deaths, missing persons and fires, and make comments and recommendations in order to avoid similar unfortunate incidents occurring in the future, and in some cases commit persons to stand trial.

The manual also endeavours to explain the role of pathologists, the investigating police officers, police officers and other persons acting as Coroner’s Assistants, court personnel and other people and agencies who are sometimes called upon to assist the Coroner in investigating the manner and cause of a death, or fire, or the circumstances surrounding the case of a missing person.

It is the intention of the author to make this manual a simple and practical handbook that coroners can easily refer to, both on and off the bench. Other stakeholders can also refer to it for guidance when difficulties arise. Coronial enquiries involve many people and a collaborative approach is essential for the Coroner to successfully carry out an investigation and conduct a formal inquest, if deemed necessary.

The role of the modern Coroner is now quite demanding and rather different to that previously carried out. The Coroner’s functions can be best described in the following five categories:[1]

The Coroner receives reports of deaths, fires and missing persons. In doing so the Coroner is required to liaise with police, pathologists and other interested persons and give instructions and directions as required. An inquest may not be required and the file may be closed as a “natural causes” matter, or alternatively one that does not require a formal hearing. However, the Coroner should still provide a brief finding regarding the manner and cause of death if the matter is finalized in chambers, and may also make comments and recommendations.

The Coroner is essentially an investigator, with the assistance and support of various personnel such as pathologists and the police.

Evidence, and any other information, is gathered and may later be the subject of a formal court hearing (inquest) where witnesses can be examined as to the statements of fact provided to the investigating officer or other persons.

What may appear to be a natural death, without suspicious circumstances, may later prove to be a suicide or a homicide. Only a thorough autopsy and detailed investigation will reveal the true manner and cause of death.

However, a coroner must always remember that the primary role and function is to FIND FACT- NOT FAULT. The function and role of a coronial enquiry is inquisitorial not adversarial. A secondary, but important function, is to make comments and recommendations directed at private or public individuals, corporations or government bodies in relation to matters such as public health or safety or the administration of justice. These comments and recommendations are made in an endeavour to avoid similar incidents occurring in the future, and can sometimes influence community attitudes.

The coroner sitting in court is not bound by the ordinary strict rules of evidence and procedure, but must always act fairly and sympathetically. The rules of natural justice must always be adhered to. Any interested parties must be given the opportunity to have their say and also ask questions of witnesses.

Because death is a very sensitive and emotional issue the Coroner should always allow time to listen to a bereaved relative.

The current Act gives the coroner power to charge a person with wilful murder, murder, manslaughter or arson, and commit a person to stand trial in the National Court.

The common law provides for the Coroner to make comments and recommendations when handing down findings. The purpose of these provisions is to prevent or avoid similar deaths or fires occurring in the future. These recommendations may be directed to government departments to improve practices, systems, road safety, maintenance of public property or licensing of certain individuals or organisations. Recommendations can also be directed at private organisations, in relation to safe workplace practices and public health or safety in general.

Accordingly, Coroners should follow up to ascertain what action has been taken in relation to any recommendations made.

In conjunction with the concept of prevention of death is that of public education. In this regard the media can be very useful in publishing the coroner’s findings and recommendations. It is sometimes useful to prepare copies of the findings to provide to media representatives when handing down the findings in court, or in chambers.

Alternatively, the coroner can prepare a press release or call a media conference in cases where a formal inquest is not conducted.

Accordingly, the role of the modern day Coroner is multi-functional and can impact quite severely on individuals, organisations, corporations and the broader community. Not only does the coroner investigate deaths and fires, but he/she can also prevent deaths, save lives and minimise injury to persons and loss of property.

2.0 GLOSSARY OF LEGAL and MEDICAL TERMS

2.1 Glossary of Medical Terms

Abdomen: part of the body, which lies below the chest and above the pelvis. It contains the liver, the stomach and most of the digestive system.

Aorta: the major blood vessel (tube), which carries blood from the heart to the rest of the body.

Asphyxiation: a state in which the body lacks oxygen for utilisation by tissues and there is an increase carbon dioxide in the blood. (Suffocation)

Atherosclerosis: a condition in which there are deposits of cholesterol plagues in walls of arteries (blood vessels) causing hardening of the walls.

Atrium: one of the pair of smaller chambers with thin musculature consisting of the upper part of the heart in which the blood follows to the ventricles (lower chambers).

Artery: a blood vessel (tube) through which the blood passes away from the heart to various parts of the body carrying oxygen and nutrients.

Autopsy: examination of a body after death to determine the actual cause of death (other words used, post-mortem, necroscopy).

Basal fracture: break in the continuity of a bone, at the base of the skull.

Bile duct: the canals that conduct bile, a greenish fluid produced by the liver to the small intestine.

Bladder: a membranous sac situated behind and above the pubic bone (front of the pelvis) where urine is stored until it leaves the body. Referred to as urinary bladder.

Bowel: passage way in which digested food passes from your stomach to the anus. (Intestine)

Bruise: a large, blotchy superficial discoloration due to haemorrhage into the tissues from ruptured blood vessels beneath the skin surface, without the skin itself being broken.

Carcinoma: a malignant tumour made up of connective tissue enclosing epithelial cells. (Cancer)

Cardiovascular: pertaining to the heart (Cardio-) and blood vessels (Vascular).

Cavity: a hollow or space, especially a space within the body or one of its organs.

Cerebrum: the main portion of the brain occupying the upper part of the cranium.

Cortical surface: the outer layer of an organ (cortex), as distinguished from its inner substance (medulla).

Diaphragm: a dome shaped muscle separating the thoracic and abdominal cavities used for breathing.

Distal: remote; farthest from any point of reference; as opposed to proximal.

Dura mater: the outermost, toughest and most fibrous of the three membranes covering the brain and spinal cord.

Epithelium: the covering of internal and external surfaces of the body, including the lining of vessels and other small cavities.

Erythrocytes: one of the cells found in blood (red blood cells) use for carrying oxygen to tissues.

Extrahepatic biliary tree: the bile ducts situated outside the liver including gall bladder draining bile to the intestine.

Faeces: the body waste discharged from the lower intestine (excreta or excrement).

Foramen magnum: a large natural opening at the base of the skull bone, in the anterior inferior part of the occipital bone connecting the spinal canal.

Gallbladder: a small saclike organ located below the liver. It serves as a storage place for bile.

Genitourinary: the organs of reproduction, together with the organs concerned with production and excretion of urine.

Gynaecology: a branch of medicine, which treats diseases of women’s genital tract.

Hepato-biliary: Hepato is pertaining to the liver/ biliary is pertaining to the bile, to the bile ducts or to the gallbladder.

Histology: microscopic study of the form and structure of the various tissues making up living organisms.

Intestines: the membranous tube extending from the end of the stomach to the anus, consisting of the small intestine and large intestine.

Infarct: an area of injured, dying and dead tissue produced by local lack of blood supply to the area due to obstructing or narrowing of blood vessel.

Infection: the invasion of body by micro-organism and the tissue reaction to their presence.

Inferior: located below or directed downward, mainly referring to lower surface of organs.

Inflammation: reaction of body to any tissue injuries including toxin, micro-organisms, trauma etc.

Ischaemia: lack of blood flowing into tissues or parts of organ due to functional constriction or actual obstruction of a blood vessel.

Laceration: a wound produced by the tearing of body tissue (usually produce by blunt force application).

Larynx: the muscular and cartilaginous structure, lined with mucous membrane, situated at the top of the windpipe and below the root of the tongue.

Lesions: any damage to a tissue, including wounds, sores, ulcers, tumours, cataracts and other tissue damage.

Leukocytes: a cell found in the blood mainly used for defence against any foreign material introduced into the body (white blood cells).

Ligature: a thread or wire used in surgery to tie off blood vessels to prevent bleeding, or strangulating a body part.

Liver: a large gland of red colour located in the upper right portion of the abdomen. It produces bile, which helps to detoxify harmful substances in the blood and stores food.

Lividity: a purple discoloration, of the body after death due to gravitation of blood to the dependent sides of the body.

Lymph node: lymph nodes filter and destroy invading bacteria and are the site of production of lymphocytes (one of the white blood cells).

Medial epicondyle: pertaining to or situated toward the midline of an eminence or projection above the condyle of a bone.

Mediastinum: the mass of tissues and organs separating the two lungs between the sternum in front and the vertebral column at the back and the thoracic inlet at the top and the diaphragm at the bottom. It contains heart and its great vessels, the trachea, oesophagus and other structures and tissues. It is divided into the anterior, the middle, the superior and the inferior regions.

Oedema: an abnormal accumulation of fluid in the intercellular spaces of the body.

Oesophagus: the hollow muscular tube extending from the pharynx to the stomach.

Omentum: a fold of peritoneum extending from the stomach to adjacent abdominal organs.

Orbit: the bony cavity containing the eyeball and its associated muscles, vessels and nerves.

Organ: a somewhat independent part of the body that serves a specific function or functions.

Parietal: Of or pertaining to the walls of a cavity eg; pleural or peritoneal cavities.

Parietal bone: one of two quadrilateral bones forming the sides and roof of the skull bone.

Pelvis: the basin formed by the hipbones and lower portion of the vertebral column, constituting the lowest part of the trunk.

Peritoneum: the serous membrane lining the walls of the abdominal and pelvic cavities and investing contained viscera, the two layers enclosing a potential space, the peritoneal cavity.

Petechial: a small, pinpoint, non-raised, perfectly round, purplish red spot caused by haemorrhage under the skin or under the mucosa.

Pharynx: the musculomembranous cavity, behind the nasal cavities, mouth and larynx, communicating with them and with the oesophagus.

Portal vein: a short thick vein formed by the union of two veins behind the neck of the pancreas. It drains blood from the intestine to the liver for cleaning.

Putrefaction: decomposition of the body effected largely by action of micro-organisms.

Respiration: the exchange of oxygen and carbon dioxide in the lungs, between the cell and its environment, and in the metabolism of the cell.

Rigor mortis: rigidity of skeletal muscles, developing 6 to 10 hours after death and persisting for 3 or 4 days.

Scalp: that part of the skin covering the skull bone which is covered with hair.

Spinal cord: the part of the central nervous system lodged in the spinal canal.

Spleen: a large glandlike organ situated under the ribs on the left side of the upper abdomen.

Sternum: a plate of bone forming the middle of the anterior wall of the thorax and articulating with the clavicles and the cartilages of the first seven ribs.

Thrombosis: formation of blood clots inside a blood vessel or in one of the chambers of the heart.

Thymus: a two-lobed ductless gland situated behind the upper part of the sternum and extending into the neck usually seen in children.

Thyroid cartilage: the shield-shaped cartilage of the larynx; the prominence it produces on the neck is Adam’s apple.

Trachea: the air passage extending from the throat and larynx to the main bronchi; called also the windpipe.

Urethra: the canal extending from the bladder and opening to the outside of the body.

Urine: the fluid containing water and waste products that is secreted by the kidneys, stored in the bladder and discharged by way of the urethra.

Vagina: the canal in the female, from the external genitalia, to the cervix.

Vaginal fornices: a recess formed between vaginal wall and the vaginal part of the cervix. Sometimes referred to as posterior fornix, anterior fornix or the lateral fornices.

Vein: a vessel through which blood passes from various organs or parts back to the heart.

Vena cava: the veins that return blood from the upper and lower parts of the body to the heart.

Viscera: any large interior organ in any of the great body cavities, especially those in the abdomen.

2.2 Anatomical Charts

2.3 Glossary of Legal and Other Terms

action: a civil court proceeding where one person sues another seeking some remedy such as damages (see below) or an order for the other person to carry out some action.

affidavit: a written statement, made on oath in front of a person duly authorized to administer an oath (e.g. a Commissioner for Oaths) that the contents of the statement are true and correct.

allegation: the assertion or statement of a party to an action (criminal or civil) which he undertakes to prove during the hearing of the case.

appeal: any proceeding taken by a party from a lower court (e.g. District Court) to a higher court (e.g. National Court). appellant: one who appeals. Also see respondent.

authority: the power or right to control, judge, or prohibit the actions of others.

autopsy: (also known as a post mortem) where the coroner orders a medical examination to be conducted on a deceased person to establish the cause of death.

bar: the bar is commonly referred to as the group of barristers or solicitors forming the legal profession within a country.

beneficiary: a person who obtains assets or a benefit under a will, which are normally held on trust by an executor or the Public Curator

bench: is the place where the Judge or Magistrate sits. The Bench is also referred to as the person or persons presiding over the Court.

cause of death: the medical cause of death (as distinct from the manner of death).

chambers findings: findings made by a coroner, in chambers, without a formal court hearing.

class action: an action brought by one person or a few persons on behalf of a larger group who have a common cause of action e.g. OK Tedi landowners against BHP.

client: a person who consults a solicitor (or other professional person). The term can also be used for persons who seek assistance from Court Officer e.g. the public, government personnel.

committal for trial: the process whereby a Magistrate in the District Court orders a person charged with a serious criminal offence to be tried by a judge of the National Court. The Magistrate must be satisfied that there is prima facie evidence before the Court to send the person for trial by the higher Court.

common law: that part of the law of England, which developed from the common custom of the country as administered by the common law courts. It can also mean judge-made law as distinct from statute law or legislation (Act of Parliament).

concurrent: At the same time (a concurrent sentence is served at the same time as another sentence).

contempt of court: can take place where a party refuses to comply with an Order of a Court.

A party, witness or lawyer may also be held in contempt of Court where they show a disregard for the authority of the Court. If found guilty of contempt a person can be imprisoned or fined by the Court.

contributory negligence: the defence in an action at common law for damages for injuries arising from negligence e.g. workplace accident that the plaintiff’s own negligence directly caused or contributed to their own injuries.

coram: a latin term meaning “in the presence of”. It is commonly used to specify which Judge/s or Magistrate heard the case.

coroner: a public official appointed to investigate violent, sudden or suspicious deaths and suspicious fires.

coroner’s assistant: a person (usually a police officer) who assists the coroner in the investigation process and also the conducting of a formal court hearing.

cross-examination: where the opposing party questions a witness who has given evidence in chief to test the truth of what has been stated.

cumulative: additional (a cumulative sentence commences at the expiration of a sentence currently being served).

damages: A sum of money awarded by a court as compensation for a wrong done by another person or for a breach of contract.

database: information that is stored in an organized way in a computer, or manually e.g. Court statistics on the number of cases filed and completed in a particular year.

deed: a written document signed, sealed and delivered, setting out in full what the parties have agreed to. It does not require consideration to be valid.

de facto: existing as a fact, although it may not be legally accepted. e.g. a de facto wife.

deposition: (1) a statement or declaration made by a witness under oath e.g. in coronial or committal proceedings. (2) the District Court file and other documents forwarded to The National Court where an appeal has been lodged.

domicile: the place in which a person is, or is presumed to be, permanently resident.

equity: fairness and justice. Originally operated alongside the common law and intended as a supplement to it, but now incorporated into a single system. It allows the Court to make orders other than compensation (damages) e.g. an order for specific performance or an injunction.

estate: an interest in land. Also used when a person dies to describe their assets

evidence in chief (or examination in chief): All the evidence given by a witness before such evidence is qualified by cross-examination.

executor: a male person named in a will to carry out the wishes of the deceased person, whereas a female is known as the executrix.

ex parte: an application in a judicial proceeding where only one side is present.

forensic medicine: the use of medical knowledge, especially pathology, for the purposes of the law, usually in determining the cause of death of a deceased person. see pathology.

habeas corpus: A writ used to challenge the validity of a person’s detention. It usually takes the form of a Court Order, directing a person who detains another in custody, to bring that person to Court in order for the Court to decide whether that person was properly detained.

hazard: exposure to or vulnerability to injury, loss or death- at risk or danger.

hostile witness: a witness is usually declared hostile by the Court on the application of a party to a case where the witness has made a written or verbal statements, and then in court gives contrary evidence, or refuses to answer questions in line with the previous statement. Normally a party is bound by the answers given by their witness, but if the Court declares the witness hostile the party is able to cross- examine that witness.

in camera: the hearing of a case in private where members of the public are not allowed into the court.

inquest: an official investigation by the Coroner to establish the cause of death of a person (usually where a person has died suddenly from unnatural causes) or the cause of a fire or missing persons.

The Coroners Act 1953 defines “inquest”- means inquest or enquiry under this Act.

injunction: a discretionary order or decree issued by a court in its equitable jurisdiction by which a party to an action is required to do, or refrain from doing, a particular thing. Injunctions are either restrictive (preventive) or mandatory (compulsory) and interlocutory (interim) or perpetual.

interlocutory proceedings: proceedings taken during the course of an action and incidental to the principal object of the action, the judgment.

investigation: the act or process of conducting a careful search or examination in order to discover the facts- to enquire into a death or fire thoroughly and systematically examine the evidence in order to establish the facts and the cause and manner of a death or fire by the use of statements, photos, plans, implements and equipment etc.

judgement: the final order of a court entered upon the completion of an action.

jurisdiction: (1) The power of a court to hear and decide a case or make a certain order. (2) The monetary or criminal limits (the boundary) within which the powers of a court may be exercised.

jurat: a section at the end of an affidavit signed by the person making the affidavit and setting out the place and date it was sworn, and the signature of the witness to the affidavit.

liability: a person’s present or prospective legal obligation, responsibility or duty. This may be established by the Court and can arise out of a contractual relationship or possible negligence.

locus standi: the right of a person to appear in Court and argue their case.

mandamus: A command or direction from a superior court to a lower court or tribunal instructing it to perform a specified public duty e.g. to hear a particular case. (one of the original prerogative writs.)

motion: an application to a Court or a Judge for an order directing something to be done in the applicant’s favour. A Notice of Motion commences the proceedings.

natural justice (the rules of): the common law rules providing person with certain rights, such as a right to be heard, a right of reply and a fair trial without prejudice or bias.

negligence: a tort, actionable at the suit of a person suffering damage as the result of the defendant’s breach of duty to take care to refrain from doing those acts, which a reasonable person could reasonably foresee as being likely to injure them e.g. driving a car. A person may also be found liable for gross negligence.

non-compliance: where a person fails to obey a Court order, usually punishable by contempt of court proceedings, a fine or imprisonment.

pathology: the branch of medicine concerned with the cause, origin and nature of a disease, or death.

perpetrator: a person who commits a crime or does something wrong or evil e.g. sorcerer.

pleadings: the written documents, which are exchanged between the parties in a civil case, which define the issues in dispute and ultimately make up the Court file. They contain the facts and evidence to be relied on by the respective parties to the case.

PNG Law Society: the controlling body for lawyers on the etiquette and practice of the Bar.

post mortem: a medical examination performed on the body of the deceased to establish a cause of death. Also see autopsy.

power of attorney: an authority, usually under seal, whereby one person empowers another to act on their behalf for certain purposes- usually when they are ill or overseas. The power of attorney ceases to have legal effect once the donor of the power dies.

preamble: that part of a statute set out in the beginning giving the reasons for the Act.

precedent: a judgment or decision of a court of law cited as an authority for deciding a similar set of facts in later cases.

prerogative writs: writs issued from a superior court to an inferior court or administrative body for the purpose of preventing them from exceeding the limits of their authority, or compelling them to exercise their functions in accordance with the law. These writs include: (1) habeas corpus; (2) certiorari; (3) prohibition; (4) mandamus.

prevention: taking steps or action in order to avoid similar events occurring – taking precautions.

prima facie: At first appearance, on the face of things. Prima facie evidence is evidence of a fact that is of sufficient weight to justify a reasonable inference of its existence but is not conclusive evidence (although it might be).

prohibition: a writ issued out of a superior court to restrain a lower court from exceeding its powers.

prosecutor: a person who takes proceedings against another person in the name of the State – usually the Police or Public Prosecutor.

prosecutrix: usually the female victim of persons charged with unlawful sexual assault (e.g. rape or carnal knowledge).

provocation: is sometimes raised as a defence in a murder trial to reduce the charge to the lesser charge of manslaughter. The accused will argue that he was provoked by the deceased to commit the killing.

quasi-judicial: the exercise of discretion and the making of a decision in a judicial manner, such as that made by an administrative tribunal i.e. semi judicial.

quorum: the minimum number of persons that constitutes a valid formal meeting

ratio decidendi: the reason for a decision and which makes binding precedent for the future.

recognizance: a legal obligation or a bond acknowledged by a defendant to secure the performance of some act or acts by the person entering into the recognizance e.g. to appear in court, to be of good behaviour or to keep the peace.

recommend: to advise, counsel or suggest that a certain course of action be taken.

remission: the reduction of a term of imprisonment (sentence) by administrative action after the sentence has been imposed by a Court. It may be given automatically by the prison authorities or may be given by the parole board. It may be given where the prisoner has been of good behaviour whilst serving the sentence or may be automatically imposed.

res judicata: something that has been legally decided and settled as being fully resolved.

rider: an added statement made by a coroner, after handing down findings, making recommendations or suggestions.

risk management: steps taken, or systems implemented, in order to avoid the possibility of incurring loss, damage or death.

safety: freedom from danger or the risk of injury or death – creating a form of protection from harm.

sentenced to the rising of the court: A sentence of imprisonment until the court finishes it’s sitting that day. Usually the court is said to be finished as soon as the sentence is imposed. Thus no time is actually served. It is a sentence, which enables a conviction to be recorded without the offender actually serving any period of imprisonment.

sine die: Until the day appointed. A court is adjourned sine die when its current sittings have been completed and the date for the next sittings has not been fixed. A matter is adjourned sine die when it is adjourned without fixing a date for the further hearing.

specific performance: an equitable remedy compelling a person to carry out their contractual obligations where damages would be an inadequate remedy for the breach of an agreement. It is not obtainable for contracts of personal service.

stakeholder: a person or organization who has an interest in the outcome of a matter.

statute barred: the Frauds and Limitations Act 1988 specifies that certain legal actions or proceedings must be brought within a certain period of time. E.g. any action for breach of a contract or an action in tort for damages for negligence must be brought within six (6) years from which the cause of action accrued. Once the six years expires the action is statute barred unless the Court extends the time.

sub judice: under judicial consideration. Thus the sub judice rule limits comment and disclosure relating to judicial proceedings in order not to prejudge the issue or influence the jury.

subpoena: a summons or Writ in an action requiring a person to appear or attend at the court or tribunal at a specified time and place to give evidence and/or produce documents.

summons: a writ served upon a defendant to secure their appearance in court.

surety: any person who offers security for another e.g. a person who agrees to forfeit a sum of money if another person fails to appear at court in answer to bail.

testator or testatrix: the title given to a deceased person who has made a will.

toxicology: the branch of science concerned with poisons and their effects on the human body.

trust: an equitable obligation involving the holding of a property for the benefit of another person

trustee: a person holding a legal title or exercising a control over the disposition of property for the benefit of others.

ultra vires: beyond legal power. An act in excess of the authority conferred by law, and therefore invalid e.g. where a company director acts outside the rules of the company.

vest: to give legal rights. E.g. after Probate of a will is granted and the assets are distributed to the named beneficiaries legal- title to those assets are then vested in the beneficiary.

vexatious litigation: a legal action brought purely for the sake of annoyance or oppression that is usually trivial, frivolous or scandalous and without substantial legal foundation.

vicarious: “As the representative of”. Vicarious liability is a legal liability imposed on one person for the torts or crimes or wrongs committed by another (usually an employee but sometimes an independent contractor or agent) although the person made vicariously liable is not personally at fault.

voidable: a defective agreement, which may be affirmed or rejected at the option of one of the parties.

voir dire: an examination of a witness on the voir dire is a series of questions by the Court and is usually in the nature of an examinations to his competency to give evidence which generally takes place prior to the person giving evidence in chief. e.g. the competency of a child to give sworn evidence.

volenti non fit injuria: voluntary assumption of the risk or that to which a person consents cannot be considered an injury- e.g. sporting events where a person is injured. A tortious defence (see above) applicable to intentional acts that would otherwise be tortious, such as boxing and running the risk of accidental harm which would otherwise be actionable as negligence - such as watching car racing.

warrant: a legal document usually signed by a judge or magistrate and sometimes sealed by the Court authorizing a specified person to perform certain acts. e.g. Search Warrant (authorizes the Police to enter premises to search for specified items), Warrant of Arrest (authorizes the Police to arrest a person and bring a person before the Court), Warrant of Execution – similar to a Writ of Levy (authorizes the Sheriff to seize and sell the assets of a judgment debtor), Warrant of Commitment (authorizes the police to apprehend and arrest a person and deliver him to Correctional Services to serve a term of imprisonment in lieu of payment of a fine or other penalty), Warrant of Remand ( authorizes Correctional Services to hold a person in custody pending the hearing of a criminal case, where bail has not been granted, or where bail is not paid.

will: a written document made by a person during their lifetime, disposing of their property upon their death.

writ: a document in the name of the State issued by a court or an officer of the State commanding the person to whom it is addressed to do or stop doing a particular act. e.g. a Writ of Summons usually commences the legal proceedings.

writ of certiorari: an order from an appellate court to a lower court requesting the record of a case that is to be reviewed by the appellate court to be produced to the appellate court.

3.0 APPOINTMENT, JURISDICTION, FUNCTIONS AND POWERS OF CORONERS

3.1 Appointment of Coroners

Section 2 (1) states that the JLSC may, by notice in the National Gazette (see G. 58 of 6 September 1979) appoint a person to be a Coroner and specify the province or provinces within which the Coroner has jurisdiction, power and authority as a Coroner. Such Coroner may only exercise powers within that province or provinces when conducting an inquest in connection with a death or a fire that occurs within that particular province.

NOTE: The Coroners Act 1953 also gives Coroners to conduct enquiries into missing persons.

Section 3 provides that District Officers, are Coroners by virtue of their office, and can act as Coroners throughout the country.

Section 4 permits medical practitioners to act as Coroners. However, they cannot hold an inquest on the body of a person whom they attended professionally, at or immediately before his death, or during his last illness.

Section 6 sets out the functions and duties of the Coroner, which is the same jurisdiction, power and authority that belongs to the office of a Coroner of England.

3.2 Jurisdiction concerning deaths

“A Coroner has jurisdiction to inquire into the manner and cause of the death of a person who—

(e) died while under an anaesthetic in the course of a medical, surgical or dental operation or an operation of a like nature; or

(f) died, but no certificate of a medical practitioner has been given as to the cause of death; or

(g) died within a year and a day after the date of an accident where the cause of death is directly attributable to the accident; or

(h) died in a corrective institution, rural lock-up or police lock-up, or while a prisoner, or in custody; or

(i) died in a mental hospital or other institution under such circumstances as to require an inquest under this or any other enactment; or

(j) died in such circumstances that, in the opinion of the Attorney-General, the cause of death and the circumstances of the death should be more clearly and definitely ascertained; or

(k) died, not having been attended by a medical practitioner at any time within three months before his death.

(2) Subject to this section, a Coroner shall inquire without delay into the manner and cause of a death occurring under any of the circumstances specified in Subsection (1).

(3) An inquest shall not be held after the expiration of 12 months from the date of a death, or after the expiration of 12 months from the date of finding a dead body, whichever is the later, unless the Attorney-General otherwise orders.

(4) Where, after considering any information as to the death in respect of which an inquest is by this section required to be held, the Coroner considers that no good purpose would be served by the holding of an inquest, he shall forward to the Attorney-General—

(a) a certificate in the prescribed form stating the reason for coming to that decision and showing particulars of the deceased person and the cause of his death; and

(b) a copy of any medical or post-mortem report made in connection with the death; and

(c) copies of all other reports that have come to his attention dealing with the death where any of the information acted on by him is information that he has obtained otherwise than from reports; and

(5) The Coroner forwarding a certificate under Subsection (4)(a) shall send a copy of the certificate to the Commissioner of Police.

(6) This section does not relieve a Coroner from the obligation of holding an inquest where under an Act he is required to hold an inquest.”

Section 7 (2) imposes mandatory obligations on a Coroner to inquire without delay into the manner and cause of a death as specified in section 7 (1).

Section 7 (3) stipulates that an inquest cannot be held 12 months after the death or 12 months after a body is found, unless the Attorney- General otherwise orders.

NOTE: It is therefore vital that enquiries and investigations are carried out as soon as possible.

3.3 No inquest

Section 7 (4) states that if the Coroner is of the opinion that no good purpose would be served by holding an inquest he shall forward a Certificate, in the form of Form 11 of the Regulations, to the Attorney-General.

NOTE: This provision does not automatically permit a Coroner to dispense with an inquest where the death is of the type specified in Section 7 (1).

Section 10 (b) states that a Coroner holding an inquest into a death must find, if possible-

(c) the identity of any person who contributed to the death where there is suspected wilful murder, murder or manslaughter.

NOTES: 1. This means that a coroner must not only find the medical cause of the death, but also the manner of death i.e. the circumstances surrounding the death – the facts.

2. Even if a person has been charged with an indictable offence in respect to homicide, arson etc., prior to inquest, the coroner must still conduct an inquest and record the usual details in relation to the death such as identity of the deceased, time, date and place of death and the manner of death (eg. gunshot wound to the head) the name/s of any persons who contributed to the death, and commit that person to stand trial.

Section 8 (1) indicates that the death can still be registered, even if the inquest is not finalised.

Section 8 (2) allows a medical practitioner to forward a post mortem certificate, or a death certificate, to the Registrar General, with the consent of the Coroner, even though the death is subject to an inquest under Section 7 (1).

NOTE: Because Coroners have the power to commit persons to stand trial it should always be remembered that procedural fairness should prevail.

If during the inquest certain evidence comes to light which may implicate a person in an alleged crime, the Coroner should contact that person explaining the situation, and allowing that person to appear in person, or with legal representation. That person may then have the opportunity to give evidence, if he/she so desires, call witnesses, or make submissions prior to the termination of the inquest.

3.4 Fires

“(1) A Coroner shall inquire into the cause and origin of any fire by which any property is destroyed or damaged where—

(2) Except where the Attorney-General directs him to hold an inquest, if the Coroner considers that no good purpose would be served by holding an inquest, he shall forward to the Attorney-General—

(a) a certificate in the prescribed form stating the reason for coming to that decision; and

(b) copies of all other reports that have come to his attention dealing with the fire; and

(c) where any of the information acted on by him is information that he has obtained otherwise than from reports—a copy of his own report on the fire.

(c) who, in his opinion, may be able to give any relevant evidence concerning the fire.

(4) After hearing the evidence, the Coroner shall give his decision or finding and certify it in writing in the prescribed form, stating—

where the offence of arson has been committed, the person (if any) whom the Coroner finds to have been guilty of the offence.”

Section 17 (1) gives Coroners the power to investigate fires that occur in PNG, and a Coroner believes it is desirable to do so (even if no death has occurred as a result of the fire).

NOTES: 1. A Coroner must investigate a fire or hold an inquest into a fire, if the

2. Accordingly, a Coroner may be investigating both a fire and a death at the same time.

Section 17 (2) states that unless the Attorney- General so directs, the Coroner also has the power to decide not to hold an inquest and issue a Certificate to the Attorney- General similar to that in the case of deaths (see Form 12 of the Regulations).

NOTE: Any finding shall be in writing in the form of an inquisition (see Form 8 of the Regulations), similar to that prepared for deaths.

Under the common law a coroner has very broad powers, and accordingly a Coroner may also make recommendations and comments on any matter connected to the fire, including public health or safety or the administration of justice.

Section 18 (1) states that any person can request a Coroner to investigate a fire, upon the payment of K2000.00 and upon providing an undertaking to pay any further costs incurred in the holding of the inquiry.

The amount of costs payable is certified by the Coroner and may be recovered by the State as a debt.

NOTE: There is no prescribed form for this certification of costs incurred. A Coroner can do so on official letterhead.

3.5 Missing persons

Section 20 provides the Coroner with the power to investigate missing persons as follows:

(a) a person has been reported to a member of the Police Force as missing and the police have not found the missing person within the period of six months after the date of the report; or

(d) a person authorized for the purpose by this section requests a Coroner to hold an inquiry, a Coroner shall inquire into the cause and circumstances of the disappearance of the missing person and into all matters and things that will reveal, or are likely to reveal, whether the missing person is alive or dead, and if the person is alive or likely to be alive his whereabouts at the time of the inquiry.

(2) Without limiting the power conferred on a Coroner by this Act to summon a person to attend the inquiry and give evidence, a person who—

(a) has, or alleges or has alleged that he has, knowledge or information concerning a matter or thing relevant to an inquiry under this section; or

(b) the Coroner has reason to believe has, or is alleging or has alleged that he has, such knowledge or information,

is a competent and compellable witness as to the knowledge or information and the sources from which he obtained it.

(3) The Coroner shall examine on oath concerning the disappearance of the missing person, all persons—

(b) forward the decision or finding to the Attorney-General together with the depositions.

(5) Except in proceedings for an offence against this Act, a statement or disclosure made by a witness on an inquiry under this section in answer to a question put to him by or before the Coroner is not admissible in evidence against him in any civil or criminal proceeding.

(6) The persons authorized to request a Coroner to hold an inquiry under this section are the Commissioner of Police, a Superintendent of Police and the husband or wife, father, mother, sister, brother, son, daughter or guardian of the missing person concerned.”

NOTES: 1. All powers given to a Coroner in relation to deaths and fires are applicable to missing persons. It is recommended that a Coroner should still make findings in relation to the following:

2. There is no specific provision in the Act whereby a Coroner can issue a certificate stating “that no good cause would be served by holding an inquest”.

Therefore, as a matter of consistency, it is suggested that a certificate similar to that used in relation to deaths and fires be used. See Form 11 of the Regulations.

3. There is also no specific provision in the Act to commit a person for trial where for example the Coroner may find that the person is alive and was abducted or kidnapped and held against their will.

4. Accordingly, the Coroner may wish to forward a copy of the inquisition (Form 8) and the depositions to the Attorney General and/or Commissioner of Police, if the Coroner is of the opinion that a person may be guilty of an offence.

4.0 INVESTIGATION PROCESS

4.1 Reporting of Deaths

However, Section 9 (1) sets out certain mandatory provisions about other persons being obliged to report deaths to the coroner, either directly or through the police.

c) an Initial Report to Coroner form completed by the Coroner or Coroner’s Clerk.

“Where a dead body is found or a case of sudden death or death attended with suspicious or unusual circumstances occurs, a person knowing, or becoming acquainted with, the death or the finding of the body must immediately give notice to the nearest Coroner or commissioned officer of the Police Force.

Sub section (2) states that a member of the Police Force must, without delay, inform a Coroner of the reported death, or body found, as soon as possible after the report is received.

NOTE: This provision makes it mandatory for the police to report such deaths.

Section 9 (2) contains mandatory provisions whereby a police officer who reports a death, or finding of a dead body, must give the Coroner any information which may help the investigation, and a police officer who has information relevant to a death must provide it to the Coroner.

NOTE: There is no specific penalty provision in the Act for failing to do so.

However it is suggested that Sections 25 and 26 may be used to compel persons to assist a Coroner with investigations into deaths, fires or missing persons

Section 25. Attendance of witnesses

1) A Coroner may issue to a person whose evidence he thinks it necessary to obtain a summons in the prescribed form to attend an inquest at the time and place named in the summons and then and there to give evidence and be examined.

(2) In the summons or by a written order, the Coroner may require a person to produce at the inquest books, documents or writings or any other thing in his custody, possession or control that the Coroner thinks ought to be produced.

(3) The Coroner shall deliver, or cause to be delivered, a summons issued under this section to a commissioned officer of the Police Force.

(4) A commissioned officer of the Police Force to whom a summons is delivered under Subsection (3) shall serve it, or cause it to be served, without delay.

(a) a person summoned as a witness neglects or refuses to appear at the time or place appointed by the summons; and

(b) no reasonable cause is offered to the satisfaction of the Coroner for the refusal; or

and after proof on oath that the summons was duly served on the person, the Coroner may issue his warrant to bring the person before him at a time and place to be specified in the warrant.

(6) The provisions of the District Courts Act 1963 relating to the enforcement of warrants, with the necessary modifications, apply to the enforcement of a warrant issued under Subsection (5).

(1) Where a person who has been summoned to attend as a witness at an inquest—

(b) refuses to take an oath or make an affirmation or be examined at the inquest; or

(d) when required by the Coroner, by summons or written order, fails or refuses without reasonable excuse to produce at the inquest books, documents or writings or any other thing in his custody, possession or control that the Coroner thinks ought to be produced, the Coroner may impose on him a fine not exceeding K400.00.

(c) brought before the Coroner by virtue of a warrant at an inquiry held under Section 20,

(e) refuses without reasonable excuse to take an oath or to make an affirmation or to be examined on oath at the inquiry; or

(f) fails or refuses without reasonable excuse, on being required by the Coroner, to produce at the inquiry, books, documents or writings or any other thing in his custody, possession or control that the Coroner thinks ought to be produced,

and, at or in respect of the same inquiry on a subsequent day, he fails or refuses to do any of the things specified in Paragraphs (d), (e) and (f), the Coroner (whether he has imposed on the person a fine under this Act for the failure or refusal on a previous day or not) may by his warrant commit the person to a corrective institution or, subject to any other law, to a rural lock-up or police lock-up until he consents to be examined and to answer concerning the matter, or to produce the books, documents, writings or other thing in question.

(3) The provisions of the District Courts Act 1963 relating to warrants of commitment apply, with the necessary modifications, to the enforcement of a warrant issued under Subsection (2).”

4.2 Investigation of Fires

Section 17 (3) provides the Coroner with jurisdiction to investigate fires in PNG, if the coroner believes it is desirable to do so, or directed to do so by the Attorney- General.

NOTES: 1. This section gives the Coroner absolute control over the investigation into the fire.

2. An investigation into a fire does not necessarily mean that a Coroner must hold an inquest into the fire, unless the Attorney- General so directs.

Section 18 provides that an inquest must be held upon the request of interested parties, upon payment of the sum of K2000.00 and the giving of an undertaking to pay all costs incurred.

The Coroner “must keep a record of each investigation into a fire, and the findings, in the prescribed form (inquisition). See Form 8 of the Regulations.

4.3 Role of the Police – Procedure

The Royal Papua New Guinea Constabulary (RPNGC) prepared a document in 1990 entitled “The Law and Practice on Coroners”. The booklet is included in the syllabus for Police Prosecutors at the Bomana Police Training College. It outlines the Coroner’s functions, and the procedures to be followed when assisting a Coroner in investigating a death, fire or missing person and conducting an inquest.

In Port Moresby it is common for a lawyer from the Attorney -General’s office to assist the Coroner in conducting an inquest. However, in the provinces this task is usually carried out by a police officer.

These personnel are not prosecutors, as the proceedings are not adversarial. They are referred to as Coroner’s Assistants, as the proceedings are inquisitorial.

Furthermore, the Coroner is not addressed as “your Worship”, but rather as ‘Sir’ or Madam”.

The 1990 booklet is based on the current 1953 Act, and is still very useful today.

As previously indicated, the police play a reporting role, an investigatory role and also act as a Coroner’s Assistant at some inquests. It is sometimes said that the police are the Coroner’s “agents in the field” and will often look to the Coroner for directions, advice and assistance. They also play a semi-judicial role as Coroner’s Assistants when an inquest is held.

Accordingly, the police work very closely with the Coroner in the investigation stage, and the later hearing process.

The provisions of Section 9 (2) set out the obligations of police to report deaths and assist the coroner to obtain information which will assist in investigating deaths.

When a death is reported to the police a “Report of Death to Coroner” form is prepared and submitted to the Coroner. It is also common for police to also prepare a “Police History Report” form.

Because the Coroner is required to determine the name of the deceased it is important that the police arrange for a relative or close friend to identify the body and make a formal statement of identification.

However, where a body cannot be recognised, or where the identity of the body is not known, a simple visual identification will not be possible. Accordingly other means will need to be adopted to establish the identity of the body such as:

· comparison of x- rays of old limb fractures, plates, prostheses etc. with medical records

· circumstantial evidence such as jewellery, clothing and property found on the body

NOTE: It is suggested that pursuant to Section 7 (1) (c) and/or (1) (d) an inquest must be held where a body cannot be identified.

If a post mortem is ordered by the Coroner, pursuant to Section 14, the police usually collect the post mortem report from the hospital, or the pathologist and, and deliver it to the Coroner.

It should be noted that Section 14 (2) provides that where a death occurs in a hospital, or other place, the post mortem should not be carried out by the treating doctor, or the doctor who performed the operation.

Coroners should play an active and a pro-active role in the investigation process. Some police will be experienced in gathering the necessary evidence and information to conduct a thorough investigation. But less experienced police may require directions and regular assistance from the Coroner in conducting a thorough investigation.

Pursuant to Sections 6 and 10 (a) the Coroner has very wide powers to direct any person to do anything that will assist the investigation. This can include directions to police officers or expert witnesses to take photographs, prepare maps, plans and reports, obtain documents, obtain further, or more detailed statements etc.

NOTE: The police may be called upon at any time to assist the Coroner to take advantage of these powers. It can be seen from these sections that the police play a very important and active role in assisting the Coroner to conduct whatever enquiries are necessary to ascertain the cause and manner of a death or a fire. These are very extensive provisions.

If a thorough investigation is requested by the Coroner the police must obtain detailed statements and when necessary take photographs, prepare plans and diagrams, collect tangible evidence such as weapons, bullets, shotgun shells, knives etc.

The Coroner may also decide to attend at the scene of the death or fire to view the body or examine the scene whilst the evidence is still fresh. See Section 12.

4.4 The Police Brief

Once the investigation is completed a police brief will then be prepared and will usually take the following form:

1. The brief will usually contain a summary of the circumstances surrounding the death, missing person or fire, and will then list the persons who have provided statements, together with a summary of their evidence.

2. It will also list any exhibits that are in the possession of the police and which are to be tendered as evidence at the inquest.

3. Copies of all statements made to the investigating police officer, and other relevant documents, will also be included in the brief.

4. The brief will also contain any medical reports, the post mortem report, photographs, maps, plans, diagrams, reports of experts, suicide notes and any other material relevant to the inquest.

Three copies of the brief are usually required- the original for the coroner, one copy for the police and one copy for the relatives. Further copies may be required for other interested parties. It may be necessary for the Coroner to decide who else is entitled to a copy of the brief.

Unlike a criminal hearing, the Coroner will receive a copy of the police brief prior to the inquest.

The Coroner will examine the brief and can direct any person to provide further information, fresh evidence, or more detail if any aspects need further clarification.

4.5 The Role of Experts

The Coroner will sometimes find it useful to call in experts, such as forensic experts, mines inspectors, engineers, fire officers, medical experts etc. to assist in the investigation process, and any later inquest.

The Coroner has very broad powers under Section 10 to obtain whatever information is necessary in relation to an investigation into a death and the manner in conducting such investigation and later inquest. This far-reaching power should be exercised with caution and due consideration and reflection.

NOTES: 1. The definition of “inquest” in Section 1 includes “inquiry”. It is suggested that this includes the investigation process.

This section, together with Sections 6 and 10 indicate that the coroner has complete control over the investigation process.

2. It should always be remembered that the investigation, and any later inquest, is under the complete direction and control of the coroner. Sometimes lawyers, relatives and other interested parties will attempt to interfere and take over the investigation, and any later inquest. However, it is the Coroner’s investigation, and the Coroner has absolute control over the process, as there are no parties involved in a coronial investigation.

4.6 Viewing the Body or Attending the Scene of the Fire

Section 12 allows the Coroner to view the body of the deceased, if the Coroner thinks it advisable.

Shortly after receiving the report the coroner may wish to view the body of the deceased, or attend at the scene of a death, or fire, within hours of the death or fire occurring. Weeks, months, or even years later, it may be necessary for the Coroner to visit the scene of the incident.

A visit to the scene of the incident, or a view of the body, can assist the Coroner to gain a better understanding of the circumstances surrounding the death, missing person or fire. Statements, photographs, plans and sketches do not always provide a good description of the scene or circumstances.

NOTE: It is suggested that the power to view a body also applies to the scene of any coronial incident, including deaths, fires and missing persons, as this is the case in England – see Section 6.

5.0 POST MORTEMS (AUTOPSIES)

Section 14 (1) provides the Coroner with the power to order that a post mortem be conducted on the body of a deceased person at any time before the termination of the inquest.

This gives the Coroner authority to order a post mortem immediately after the death is reported, or even days, weeks or months later.

Accordingly it may also be necessary to exhume a body if burial has already taken place.

The results of post mortems (or autopsies) commonly assist the Coroner in establishing the medical cause of death. Once a post mortem report is received the Coroner is in a better position to decide on the next course of action to take in the investigation process, if any.

The result of the post mortem will assist the Coroner to then endeavour to establish the manner of death. e.g. the deceased may have died of a heart attack (cause), but this may have been caused by being confronted by three armed robbers (manner).

Coroners should work closely with pathologists and doctors to ensure that post mortems are promptly conducted and reports received as soon as possible. Delays can lead to problems later with witnesses being difficult to locate, the body being buried, evidence being destroyed, lost or removed and various other unforseen problems.

5.1 Post mortems

A post mortem should always be ordered where a doctor is not able to issue a Medical Certificate of Death, or where such a Certificate has been issued, and the Coroner is not satisfied as to the nominated cause of death.

Section 13 also provides the Coroner with the power to summons any medical practitioner who had attended the deceased person.

Sometimes relatives will request a post mortem even though a Medical Certificate has been issued. The Coroner always has the final say as to whether or not a post mortem should be performed.

See Sections 14 (3) and (4), which provide for a Coroner to summons a medical witness (or any other person), or direct that a post mortem be conducted again, even if a post mortem has already been conducted.

NOTES: 1. If a post mortem is not ordered the Coroner must be satisfied that the proper cause of death can be determined without a post mortem.

2. In order to make such a decision it may be necessary for the Coroner to discuss the circumstances of the death with a pathologist or a doctor who may have inspected the body.

3. The Coroner should also take into account any reports, statements and other documents.

4. It may even be necessary to conduct a preliminary hearing/inquest and question certain people.

5.2 Role of Pathologists and Doctors

As previously indicated the pathologist or doctor plays a vital role in assisting the Coroner to find the medical cause of death, and sometimes the manner of death. It is usually the role of the police to assist the Coroner to then determine the manner of death.

The pathologist may merely conduct a visual inspection of the body to establish a cause of death. However, it is more common for a full post mortem to be carried out. This will mean that the body will be dissected in order to find a primary, and sometimes secondary cause/s, of death.

A post mortem will usually involve examining certain organs, bones and tissue by opening the skull, opening the chest cage and opening the stomach cavities.

Sometimes other more specific and detailed tests are carried out, such as histology (taking samples of tissue for further microscopic examination) and toxicology (taking fluid and other samples from the stomach or blood for testing-usually for poisons or other foreign substances). These tests can take weeks, or even months.

6.0 BURIAL

6.1 Control of the body

The provisions of the Coroners Act clearly indicate that if a death occurs and it is reported to the Coroner the body is under the control of the coroner investigating the death.

The Coroner shall decide if a post mortem should be performed, and only the Coroner can release the body for burial.

6.2 Issue of certificate of Burial.

NOTES: 1. There is no provision in the Act that relates to this Warrant, other than Section 35 which gives the Head of State the power to make Regulations to give effect to the Act.

2. There appears to be no provision for cremations or other forms of disposal of the body as the document is clearly a Warrant to Bury. This may cause some difficulties, for example, where a foreigner residing in PNG wishes to be cremated overseas, or buried at sea etc.

7.0 REGISTRATION OF DEATH

Section 8 (1) provides that the Coroner must notify the Registrar -General as soon as possible of the particulars found by the Coroner that are needed to register the death, whether or not an inquest is held.

Accordingly, it appears that it is the responsibility of the Registrar -General to provide Coroners with such forms.

2. Coroners should refer to the Civil Registration Act 1963, and should be aware that the title of the Registrar – General may change from time to time.

Section 8 (2) permits a Coroner to allow a medical practitioner to forward a medical certificate or post mortem certificate to the Registrar -General.

8.0 NO INQUEST

8.1 Grounds for Not Conducting a Formal Hearing

Section 1 (the Interpretation section) defines “inquest” as meaning “an inquest or inquiry under this Act”.

Accordingly, a Coroner does not need to hold a formal hearing to conduct an “inquest’ pursuant to the Act.

The majority of a Coroner’s work is administrative, rather than judicial. Many coronial decisions are made in chambers, and not in court. Any findings made in chambers may still include comments and recommendations in relation to public health or safety.

If these comments are directed at a particular person or organization a copy should be forwarded to them as soon as possible.

If there is any uncertainty about the facts or the cause of death an inquest (formal hearing)should be conducted.

Therefore, if a Coroner is satisfied that a formal hearing is not required the matter can be disposed of without conducting a formal inquest.

This is quite common where a death is reported to the Coroner, and a doctor later issues a Medical Death Certificate, or alternatively, where the post-mortem reveals that the person died from natural causes, and there are no unusual or suspicious circumstances surrounding the death.

8.2 Procedure

The Coroner has a very wide discretion and very broad powers to inform himself, or herself, of any matters which will assist in ascertaining the cause and manner of death.

Coroners can give directions to the police, or other persons, and can summons any person.

If the Coroner is satisfied on all of the evidence before him/her that there are no suspicious circumstances the file can be closed, after the Warrant to Bury (Form 9) is issued and the death is registered (Section 8).

It is always important to notify the next of kin of any such action, particularly where allegations of foul play or suspicious circumstances may have been made.

It may even be advisable, in some cases, for the Coroner to meet with all interested parties to ascertain whether an inquest is really necessary.

NOTE: A Coroner can still make comments and recommendations even though an inquest has not been held. However, it may be advisable, and appropriate in certain circumstances, for the Coroner to meet with any persons who may be affected by the recommendations, firstly to establish whether an inquest is necessary, and secondly to discuss the nature and actual formulation of the recommendations.

Section 7 (4) requires a Coroner to issue a “Certificate Where Inquest On Death Will Serve No Good Cause”.

This Certificate, together with a copy of the medical or post mortem report and copies of all other reports, plus the Coroners report on the death, must be forwarded to the Attorney -General.

NOTE: It is suggested that these provisions do not relieve the Coroner from holding an inquest where the death occurred in circumstances set out in Section 7 (1) set out below.

(e) died while under an anaesthetic in the course of a medical, surgical or dental operation or an operation of a like nature; or

(f) died, but no certificate of a medical practitioner has been given as to the cause of death; or

(g) died within a year and a day after the date of an accident where the cause of death is directly attributable to the accident; or

(h) died in a corrective institution, rural lock-up or police lock-up, or while a prisoner or in custody; or

(i) died in a mental hospital or other institution under such circumstances as to require an inquest under this or any other enactment; or

(j) died in such circumstances that, in the opinion of the Attorney-General, the cause of death and the circumstances of the death should be more clearly and definitely ascertained; or

(k) died, not having been attended by a medical practitioner at any time within three months before his death.”

Once again it is purely at the sole discretion of the Coroner to decide whether to hold an inquest, unless directed to do so by the Attorney -General.

9.0 INQUESTS

The Coroner always has the absolute discretion whether or not to hold an inquest, except in cases specified in Section 7 (1), where the coroner must hold an enquiry and/or inquest.

(e) died while under an anaesthetic in the course of a medical, surgical or dental operation or an operation of a like nature; or

(f) died, but no certificate of a medical practitioner has been given as to the cause of death; or

(g) died within a year and a day after the date of an accident where the cause of death is directly attributable to the accident; or

(h) died in a corrective institution, rural lock-up or police lock-up, or while a prisoner or in custody; or

(i) died in a mental hospital or other institution under such circumstances as to require an inquest under this or any other enactment; or

(j) died in such circumstances that, in the opinion of the Attorney-General, the cause of death and the circumstances of the death should be more clearly and definitely ascertained; or

(k) died, not having been attended by a medical practitioner at any time within three months before his death.

In any other situation the coroner may hold an inquest into a death, missing person or a fire if the Coroner believes it to be desirable, unless directed to do so by the Attorney -General.

The Coroner can decide that more than one death, missing person, or fire, or deaths, missing persons and fires be investigated at one inquest. For example, this may occur where an explosion occurs in a crowded building causing a fire, mutilating bodies beyond recognition and the finding of bodies which can be identified, or where there is a major motor vehicle, or aircraft accident, resulting in an explosion and fire.

An inquest is a public hearing using some District Court procedures, but with less formality.

· admitting relevant and reasonable evidence and other information or materials;

· the Coroner is not bound by the strict rules of evidence, but must adhere to the rules of natural justice.

· it is an inquiry process conducted by the Coroner - and not an adversary process in which opposing parties are responsible for adducing their own evidence or materials.

· any person wishing to appear or give evidence must first seek leave from the Coroner to do so.

· the Coroner is not addressed as “Your Worship”, but as “Madam’ or ‘Sir”.

It should always be remembered that in most cases an inquest is a fact finding exercise and not a method of apportioning guilt or negligence.

There are no parties, there is no indictment, there is no prosecution, there is no defence and there is no trial. In most cases the enquiry is simply an attempt to establish the facts surrounding the death, a missing person, or a fire, and in some cases commit a person, or persons, to stand trial in the National Court.

9.1 Power to Hold an Inquest

Section 7 sets out the powers of a Coroner to hold an inquest or enquiry into a death.

9.1.1 Procedures

Section 10 sets out the procedures to be followed when conducting an inquest.

(ii) who, in his opinion, are able to give relevant evidence respecting the facts,

· A Coroner can by summons, or by written order, require a person to produce at the inquest documents, materials, or any other thing in his possession.

· If a person fails to attend the inquest after being served with a summons the Coroner may issue a Warrant of Arrest for Contempt of Summons.

Section 26 creates an offence for a person failing to attend an inquest, refusing to take an oath, or refusing make an affirmation, or refusing to give evidence, or failing to produce documents etc. The penalty is K40.00.

Furthermore, the Coroner can also commit a person to be held in custody until he or she complies with the direction of the Coroner.

The provisions of the District Courts Act relating to the enforcement of warrants apply to coronial matters.

(a) make a person compellable to answer a question tending to incriminate himself; or

(b) prevent the prosecutor in a trial from tendering in evidence any admission or confession or other statement of the accused made at any time, that would be admissible by law as evidence against the accused.”

However, Section 24 provides that, except in the conducting of an inquest into a missing person under Section 20, the provisions of the Evidence Act regarding the right of an accused person, and the husband or wife of an accused person to give evidence or otherwise, extend to proceedings before a Coroner.

See Form 3 of the Regulation for the form of the Warrant for Contempt of a Summons.

Section 33 states that a Coroner shall sign any written summon, warrant or order issued or made by him.

9.2 Purposes of an Inquest

· to conduct an enquiry and make findings in relation to the facts surrounding a death, missing person/s or fire; and

· to provide a public forum for considering public issues, including health or safety, relating to deaths, missing persons and fires: and

In normal circumstances inquests are conducted in public in a courthouse before a Coroner alone, who is normally a magistrate. However, there may be occasions where an inquest may be held at a place other than a courthouse and members of the public or specific persons may be excluded from attending the inquest, or a part of it.

9.3 Procedures at Inquests

9.3.1 Inquests into Deaths

“(b) after hearing the evidence, give his decision or finding and certify it in writing in the prescribed form (see Form 8 – Inquisition), setting forth, so far as they have been proved, the following particulars:—

(iii) the person (if any) suspected or accused of having caused the death by wilful murder, murder or manslaughter where the deceased came by his death by wilful murder, murder or manslaughter.”

9.3.2 Suicides

Section 16 has retained the old provisions of the laws of England, whereby a person who commits suicide, was once forbidden a Christian burial and his property was forfeited to the Crown.

9.3.3 Inquests into Fires

· A Coroner shall enquire into the cause and origin of a fire where property is destroyed or damaged, where he is of the opinion that he should do so OR when the Attorney General so directs.

· Except where the Attorney General so directs, the Coroner can issue a Certificate That No Good Purpose Would be Served by Holding an Inquest.

· After hearing the evidence, the Coroner shall give his decision or finding and certify it in writing in the prescribed form (Form 8 – Inquisition) , stating—

(c) where the offence of arson has been committed, the person (if any) whom the Coroner finds to have been guilty of the offence.

Section 18 provides that any person may request a Coroner to conduct an inquest into a fire, upon the payment of the sum of K2000.00 AND providing an undertaking to pay any further costs or expenses incurred in conducting the inquest.

9.3.4 Inquests into Missing Persons

(a) a person has been reported to a member of the Police Force as missing and the police have not found the missing person within the period of six months after the date of the report; or

(d) a person authorized for the purpose by this section requests a Coroner to hold an inquiry,

a Coroner shall inquire into the cause and circumstances of the disappearance of the missing person and into all matters and things that will reveal, or are likely to reveal, whether the missing person is alive or dead, and if the person is alive or likely to be alive his whereabouts at the time of the inquiry.”

The Coroner has the power to summons any person (see Form 1 of the Regulations) to attend the inquest, and give evidence as to the circumstances surrounding the missing person, or their possible whereabouts.”

· The Coroner shall examine on oath concerning the disappearance of the missing person, all persons—

(a) give his decision or finding in writing (Form 8 – Inquisition) and signed by him; and

(b) forward the decision or finding to the Attorney-General together with the depositions.

· Except in proceedings for an offence against the Act, a statement or disclosure made by a witness on an inquiry under this section in answer to a question put to him by or before the Coroner is not admissible in evidence against him in any civil or criminal proceeding.

· The persons authorized to request a Coroner to hold an inquiry under this section are the Commissioner of Police, a Superintendent of Police and the husband or wife, father, mother, sister, brother, son, daughter or guardian of the missing person concerned.

9.4 Charging a Person with Murder, Arson etc.

Section 19 sets out specific procedures that a Coroner must follow when committing a person for trial in the National Court, which are set out below.

“(1) Where a Coroner's inquisition charges a person with the offence of wilful murder, murder, manslaughter or arson, the Coroner shall—

(a) read the charge to the person charged and explain its nature in ordinary language and say to him these words or words to the like effect:

You are not obliged to give evidence or to say anything and you will not be prejudiced in any way if you decide to remain silent.

If you do wish to be sworn and give evidence or if you wish to make a statement, whatever you say, whether on oath or not, will be taken down in writing and may be given in evidence at your trial.

You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, that may have been held out to you to induce you to make any admission or confession of your guilt, but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat; and

(b) put into writing, or cause to be put in writing, whatever the person charged says in answer; and

(c) issue his warrant for arresting or detaining the person (if a warrant has not been previously issued) and commit the person for trial; and

(d) bind by recognizance all persons examined before him who know or declare anything material about the offence to appear at the next sittings of the National Court then and there to prosecute or give evidence against the person charged.

(2) A statement put into writing in accordance with Subsection (1)(b), shall be read over to or by the person charged and signed by the Coroner and, if the person charged so desires, by the person charged.

(3) Where the offence charged is manslaughter or arson, if the Coroner thinks fit he may accept bail by recognizance with sufficient sureties for the appearance of the person charged at the sittings of the National Court at which the trial is to be held, and if the person is in the custody of an officer of the Coroner's Court or in custody under a warrant of commitment issued by the Coroner he shall be discharged.

(4) The Coroner shall transmit to the Registrar of the National Court, without delay, the inquisition, depositions, statement (if any) and recognisances, with a certificate under his hand that they have been taken before him.”

9.5 Depositions and Statements

· Every deposition taken shall be read over to the witness and signed by the witness and the Coroner. See Form 6 of the Regulations for the form of deposition.

· Except in the case of missing persons, on the trial of any person, the depositions and any statement made or taken, may be admissible in evidence, similar to those taken at a committal hearing of an indictable offence.

· At the conclusion of the inquest, whether a person is committed for trial, or not, the Coroner shall forward the depositions to the Attorney General with the certificate under Section 10 (deaths) or Section 17 (4) (fire) AND send a duplicate of the certificate to the Commissioner of Police, AND where the inquest is into a death, to the Registrar General.

9.6 Summary of the Procedure at an Inquest

a. The Coroner enters the courtroom with the inquest file, and all persons present are requested to stand.

b. The person assisting the Coroner formally declares the Court in session and people then sit.

c. The Coroner explains to the people in the courtroom what the inquiry is about.

(e.g. "This is an inquiry as to when, how and by what means (name of deceased) came by his/her death on (date)."

d. Lawyers who are representing individuals, or individuals, who have an interest in the matter must seek leave from the Coroner to appear.

e. The Coroner then announces which witnesses he/she wishes to examine and they are called in turn and examined and cross examined. Some witnesses may be requested to leave the court until called upon to give their evidence.

f. During the inquest the Coroner keeps a written record of the evidence (depositions).

g. After all the witnesses have been examined the Coroner gives his/her findings and makes any relevant comments and/or recommendations, if necessary.

NOTE: It is important that inquests are conducted with the same dignity, and using similar procedures as District Court hearings, but with more flexibility and less formality.

For this reason, Coroners should be treated in the same manner and with the same respect as magistrates.

This helps to remind everyone throughout the hearing that the Coroner is not conducting a trial.

It also creates a less formal atmosphere and comfortable courtroom environment, in what are usually difficult and emotional circumstances.

9.7 Calling Witnesses

NOTE: It may be useful to conduct a call-over of coronial cases that will be determined by inquest to ascertain who will be called as a witness, and the estimated length of time the hearing will take.

Alternatively, a pre- hearing conference may be useful to obtain this information, particularly in what may be a potentially complex or lengthy inquest.

In relation to inquests into deaths the order of calling witnesses often is as follows:

It also provides the relative with the opportunity to explain any issues or concerns which they may wish the Coroner to address during the inquest.

It also provides the Coroner and other interested persons with an overview of the surrounding facts and circumstances.

3. The medical officer next — to give evidence as to the medical cause of the death, and other medical findings.

NOTE: This order of calling witnesses is at the absolute discretion of the Coroner and may be altered to suit each particular case.

If counsel representing an individual wishes to have a witness called, they need to first obtain the Coroner’s consent. The Coroner has a discretion as to whether or not to allow the witness to be called.

Similarly, the Coroner decides whether an interested person or a legal representative, can ask questions of any witness, and make submissions.

If during the examination of witnesses serious allegations are being made against a person who is not present at the inquest it is usual, and most advisable, for the Coroner to adjourn the hearing to enable that person to be called and have the opportunity to attend the hearing. Otherwise that person may later allege a denial of natural justice.

9.8 The Oath

For example, a child may not need to be sworn, or it may be against a person’s religion to swear on the Bible.

NOTE: The Act does not provide specific wording of the oath to be administered at an inquest.

“Do you swear that the evidence you shall give to this inquest concerning the death of (AB) shall be the truth, the whole truth and nothing but the truth-so help you God.”

“Do you swear that the evidence you shall give at this inquest into the cause of the fire which occurred at (place and date) shall be the truth, the whole truth and nothing but the truth-so help you God.”

“Do you solemnly, sincerely and truly affirm and declare that the evidence you shall give” full wording to be inserted.

During the conduct of a hearing it would be irregular for a Coroner to accept as the evidence of a witness, a previously prepared written statement, without examining the witness under oath.

Such a written statement may be used as the basis upon which the witness can be examined and it can form part of the depositions of the inquest.

However, if the Coroner decides not to conduct a formal hearing these statements can be submitted by the police as exhibits and be used as evidence to support the findings.

Because coronial inquests are deemed to be ‘judicial proceedings’, a person who deliberately gives false evidence on matters material to the inquiry, can be prosecuted for perjury under Section 121 of the Criminal Code.

9.9 Role of the Person Assisting the Coroner

The person assisting the Coroner plays a supportive and investigatory role, and is usually a member of the police force, or a lawyer from the Attorney -General’s Department.

Unlike a criminal trial, the police assisting the Coroner should work closely with the Coroner. There is no bar to discussions between the police and the Coroner before, during, and after the investigation and inquest.

The Coroner’s Assistant usually calls the witnesses and generally leads them through any statement they may have made. They can examine and cross-examine witnesses, produce statements, tender exhibits and any other material to the Coroner’s Court, in order to assist the Coroner to make appropriate findings relating to the death, missing person or fire.

However, the Coroner always has complete control of the proceedings and can ask any questions or give any directions at any time. If the Coroner is of the opinion that further investigation is required, the inquest can be adjourned. The Coroner can direct the police, or any other persons, to obtain further information and then proceed with the hearing at a later date.

9.10 Who can Appear or be Represented – Rights of Interested Parties

The Common Law sets out the rights of interested persons and that the rules of natural justice shall apply.

The Coroner can make available statements to any interested person at any time prior to, during, or after the inquest has been completed.

The Attorney General can appear, or be represented, at an inquest and call witnesses.

A person must first obtain permission from the Coroner to appear, or be represented, at an inquest.

Accordingly the Coroner has the absolute discretion to decide who fits into this category.

See Bacci V Asling (Supreme Court of Victoria – Practice Court – Case No. 4306 of 1995.

In this case the Court held that whether a person had “sufficient interest” was a question of fact.

If so, that person has an absolute right to appear, be represented, examine and cross-examine witnesses and make submissions in relation to the evidence that has been put before the court.

2. The word “person” includes companies and government departments i.e. any legally recognised entity.

3. Any person against whom civil or criminal action could be taken should be permitted to appear in person, or by a lawyer.

4. However, persons who merely have a financial interest in the outcome may not necessarily have the right to appear. It will be at the discretion of the Coroner to determine if there is a sufficient interest.

5. Lawyers who are denied a right of appearance may be permitted to sit at the bar table to “watch the interests of their client” and may be permitted by the Coroner to ask question of certain witnesses.

9.11 Recording Evidence/Depositions

Section 49 states that:

“Evidence of any proceedings before a Coroner must be recorded.”

Furthermore, if the evidence is recorded in writing, the record must be read to, and signed by the witness.”

1. If the evidence is recorded in writing the Coroner can delegate the taking down of evidence to the Coroners Clerk.

2. The evidence can be taken down in the first person, rather than in written question and answer form.

3. In lengthy or complex inquests, it may be necessary to engage the services of Court reporters to record and transcribe the evidence.

9.12 The Media – publication/restrictions.

Section 30 (3) provides the Coroner with the power to forbid publication, or reporting of the inquest, or any part of the inquest, if the Coroner reasonably believes that a ban on such reporting would be in the interests of public morality.

1. Once again these are very extensive powers and a Coroner must act reasonably in all the circumstances, as “public morality” is not defined in the Act.

Accordingly Coroners will have to rely on case law and the common law in defining “public morality”.

The media will always argue that “the public has a right to know”. However the Coroner must balance the public’s right to know and the rights of other persons who may be affected by such reporting.

2. Some times the media, or affected interested persons, will go to the National Court to seek orders that publication be permitted after a Coroner has banned publication of all, or part, of the proceedings. The National Court has the power to override the order of a Coroner.

3. Coronial cases are not popular with everyone, as the strict rules of evidence are not adhered to and the media would obtain more information than it would in a normal civil or criminal trial.

4. As previously stated, the media can be a very useful avenue to assist the Coroner, but reporting of controversial or sensitive issues can also be quite detrimental to the outcome of the proceedings, and any recommendations. As a matter of prudence the Coroner should avoid contact with the media once an inquest is underway.

5. The Coroner may need to use the media during the investigation process to assist in identifying a body.

6. It was noted in the South Australian case of Von Einem v. Ahern FC of SC 2 February 1988, that “it is quite improper for a member of the media to telephone any person holding a judicial office.”

Accordingly, where possible, it is important that Coroners ensure that their Clerks screen all telephone calls for the Coroner, prior to transferring the call to the Coroner.

9.13 New Inquests and Re-opening Inquests

“(1) Where the Attorney-General directs a Coroner to re-open or hold an inquest, he shall—

(b) hold the inquest, if an inquest into a death has not been held because he, or another Coroner, has certified that the inquest was not necessary.

(b) a person authorized for that purpose by this section requests him to re-open or hold the inquest.

(3) Before re-opening or holding an inquest at the request of a person authorized for the purpose by this section, a Coroner may require a ritten statement of the grounds for the request.

(4) Where a Coroner considers that the grounds given under Subsection (3) do not warrant the re-opening or holding of the inquest he may refuse to re-open or hold it, as the case may be, but he shall, in writing accompanied by a copy of the grounds for his refusal, inform the Attorney-General of his refusal.

(5) The persons authorized to request a Coroner to re-open or hold an inquest under this section are the Commissioner of Police, a Superintendent of Police, and the husband or wife, father, mother, sister, brother, son, daughter or guardian of the deceased person.”

9.14 General Powers of Coroners

Section 22 of the Coroners Act provides a Coroner with all the powers conferred on a Magistrate by the District Courts Act 1963 in respect of hearing indictable offences, with necessary modifications to inquests.

9.15 Witnesses Expenses

Section 31 provides the Coroner with the power to issue a certificate granting payment of such an amount as the Coroner thinks reasonable to any witness who has attended an inquest. The amount is for “expenses, trouble and loss of time”.

Such amount cannot be more than that which is allowable by the National Court in criminal cases.

The certificate is then produced by the witness to the Secretary of Finance for payment.

1. It has recently become the practice for the certificate to be produced to the Attorney –General’s Department for payment of witnesses expenses.

2. “Trouble” is not defined in the Act and it is therefore for the Coroner to decide what is an appropriate amount to be awarded to a witness for expenses.

9.16 Non Payment of fines

Section 32 states that “where a person has failed to pay a fine the Coroner may issue a certificate setting out the details of the person and the amount of the fine and forward it to the Clerk of the nearest District Court, who shall enforce the fine as if the fine had been imposed by that Court.”

9.17 Return of Inquests

(1) “(a) make an abstract of the proceedings on the inquest and his finding; and

(b) state in the abstract the names of all witnesses examined at the inquest; and

(i) an account of all sums of money ordered or certified by him to be paid on account of the inquest; and

(ii) an account of the number of days during which the inquest or any adjournment of the inquest continued.

(2) The Coroner shall certify the abstract and accounts to be true and correct and sign and transmit them without delay to the Attorney-General to be filed on record in such manner as the Minister directs.”

10.0 RULES OF EVIDENCE

Under the common law a Coroner is not bound by the strict rules of evidence and may be informed, and conduct any inquest, in any manner the Coroner reasonably thinks fit.

NOTE: The Act does not contain any specific provisions regarding rules of evidence.

10.1 Natural Justice

NOTE: Even though a Coroner is not bound by the strict rules of evidence, the Coroner is still bound by the rules of natural justice.

10.2 Standard of proof

The standard of proof is similar to the standard of proof in civil cases. i.e. on the balance of probabilities.

However, where there is evidence of a criminal act “ proof of the criminal act must be clear, cogent (convincing) and exact, and when considering such proof, weight must be given to the presumption of innocence.”

“This imposes on the Court the burden of reviewing the whole of the evidence and examining for itself all issues of fact, including inferences from the evidence.”

(see Anderson v. Blashki [1993] 2 V.R. 89 where Briginshaw v. Briginshaw (1938)

10.3 Examination of Witnesses

Because the proceedings are not adversarial there is no examination in chief, cross-examination or re-examination. However, this method of conducting the hearing is useful and appropriate in most inquests.

It is the Coroner who has the absolute right to examine witnesses, because the Coroner has called the witnesses. The coroner’s assistant also has wide powers regarding examination of witnesses. Any other persons must first seek leave from the Coroner to ask questions of any witnesses.

The examination will normally commence by the witness being sworn and then stating their name, place of residence, occupation and qualifications, if necessary.

It is common practice for the Coroner or the person assisting the Coroner to read a previously prepared statement to the witness. The witness is asked to verify the contents of the statement and to verify their signature.

The responses are recorded and the statement is put into evidence as an exhibit.

Further evidence is then obtained from the witness by way of examination or cross-examination.

After the Coroner has completed the initial examination the person assisting the Coroner is invited to ask questions of the witness, followed by any interested persons and/or legal representatives.

All questions must be relevant to that particular death, missing person or fire, and the opportunity to ask questions should not be used as a “fishing expedition”. The Coroner can disallow any question at any time, if it is improper or irrelevant.

Lawyers will often attempt to use the inquest as an opportunity to obtain evidence for future civil or criminal proceedings. This is not the purpose of the inquest. The inquest is impartial and the Coroner has complete control over the proceedings.

The Coroner can re-examine the witness at any time on specific points, if further clarification is necessary.

It is usual for Counsel representing a witness called by the Coroner to examine his client last, after the person assisting the Coroner and other counsel present have asked their questions.

It is common for the Coroner, or the Coroner’s Assistant to ask final questions to clarify any facts or issues.

Where there is a person who appears to be responsible for a death (or a fire) it is usual to call that person last. This person will usually refuse to answer questions on the grounds of self-incrimination. If the person has been summonsed to appear by the Coroner that person should enter the witness box and take the oath. Only then can they refuse to answer questions on the grounds of self-incrimination.

For obvious reasons, leading questions should not be asked when controversial matters are covered in the witness’s evidence.

“Controversial” meaning matters likely to be in dispute, in particular matters relating to possible criminal offences.

10.4 Admissibility

The Coroner should follow the “best evidence” rule and seek production of original documents, where possible.

Because a coronial inquest is an inquiry, and not a criminal trial, or civil hearing, the Coroner can hear evidence that would otherwise be inadmissible in a trial or civil hearing. This means that a Coroner can admit any evidence that he/she thinks fit, even if it is not admissible in a court of law. This includes opinions and hearsay evidence.

However, the evidence must be relevant to that enquiry. It is then for the Coroner to give whatever weight is appropriate to the evidence when handing down his/her findings and recommendations.

10.5 Submissions

Neither the officer assisting the Coroner, nor counsel representing interested persons, have any absolute right to make submissions to the Coroner at the conclusion of the evidence, unless invited to do so.

As a general rule counsel are not permitted to put their clients side of the story by way of a “final address” or submissions to the court.

But a Coroner in a particular case may find it useful to receive submissions from legal representatives or interested parties.

However, the Coroner may wish to ask Counsel to address him/her on aspects of the law (and sometimes the facts), if the Coroner requires direction on a point of law, or clarification of a version of the facts.

10.6 Court of Record

The Coroners Court is a Court of Record and evidence is taken in the form of depositions.

11. FINDINGS AND RECOMMENDATIONS

Section 23 stipulates that a Coroner must keep a record of each investigation into a death in the prescribed form (Inquisition). See Form 6 (Depositions) and Form 8 (inquisitions) of the Regulations.

“Except as provided in Section 20 (missing persons), on the trial of a person the depositions and any statement of the person charged taken in accordance with Section 19 (deaths and fires) are admissible in evidence in the same manner and to the same extent as depositions, or a statement of the accused, taken on the preliminary hearing of an indictable offence.”

However Section 20 (5) states that in relation to missing persons, a record is not evidence in any court of any fact asserted in it, and is not admissible in evidence against any person in any civil or criminal proceeding.

11.1 Findings

Set out below are some sample findings in the more common causes of death, which may be useful to Coroners, and can be altered to suit different circumstances. Some sample findings in relation to fires are also included

Page 45 of this Manual contains a list of details that should be included in findings regarding missing persons, where possible

Coroners should ensure that sufficient facts are disclosed in the findings to identify issues that are relevant to the investigation, particularly where comments and recommendations are made in relation to public health or safety.

11.1.1 No Death

11.1.2 Uncertain Deaths

I find that it has not been proved to a satisfactory degree of probability that AB, the subject of this inquest has died.

I find that the remains of the deceased person found on… at… were those of a female person and that she died between the months of … and…at… ;

But as to the identity of such deceased and the manner and cause of her death the evidence adduced does no enable me to say.

11.1.3 Suicides

On…at …AB died of the effects of poisoning by chloroquine, self- ingested, with the intention of taking her own life.

On…at … AB died of the effects of poisoning by carbon monoxide, self -administered, with the intention of taking his own life.

On…, in his motor car parked at XX, AB died of the effects of poisoning by carbon monoxide, self-inflicted, with the intention of taking his own life.

On…at…AB died of the effect of a bullet wound of the head, self-inflicted, with the intention of taking her own life.

On …in an ambulance on route to Port Moresby General Hospital AB died of the effects of a bullet wound of the head, wilfully self-inflicted earlier that day.

On…at…AB died of asphyxia suffered when he hanged himself with the intention of taking his own life.

On…at…AB died of the effects of multiple injuries sustained when she projected herself off the top of a cliff/bridge/roof with the intention of taking her own life.

On…at…AB died from the effect of multiple injuries sustained when he jumped from the window of the fourth floor premises of the XX building with the intention of taking his own life.

On…at…AB died of the effects of an incised wound of the wrist/neck, wilfully self-inflicted.

On…at…AB died of blood loss, resulting from incised wounds to the wrists, self-inflicted, with the intention of taking her own life.

NOTE: 1. Suicide is never presumed, and there should be a presumption against suicide. It must be affirmatively proved to justify the finding.

Just because a person is found dead with an empty bottle of poison beside the body does not conclusively point towards suicide. There must be further evidence of suicidal tendencies or intention on the part of the deceased to take his/her own life. If the Coroner is not satisfied that suicide has been proved, but remains a possibility, then an open verdict should be returned.

2. Section 21 allows any “authorised person” to make a request to a Coroner for an inquest to be re-opened, or for a new inquest.

11.1.4 Road Accidents

On…at...AB died of the effects of head injuries sustained on …at …when the motor car he was driving collided with PMV driven by XY.

On…….at…(hospital) AB died of bronchopneumonia attributable to/resulting from multiple injuries sustained at …when, whilst crossing/walking across/running across XX Street, he was struck by a

On…at…AB died from the effects of multiple injuries sustained then and there when a motor vehicle he was driving left the roadway and collided with a stone fence/tree/pole.

On …at the intersection of XX and YY streets AB died of the effects of multiple injuries sustained then and there when the motor car in which she was a passenger, and which was driven by XY, collided with a motor vehicle driven by CD.

On.. in an ambulance en route to Angau Hospital AB died of the effects of head injuries sustained earlier that day at XX when the motor cycle on which she was a pillion passenger left the roadway and collided with a tree.

11.1.5 Accidental Deaths

These deaths can arise out of recreational hazards, industrial accidents, drownings, falls, accidental gassings or poisonings, drug related deaths, aircraft incidents, suffocation, burns and shootings etc.

However, it should be remembered that no death is purely “accidental”. Such deaths should be regarded as incidents, which are in most cases preventable and avoidable.

Accordingly, Coroners should avoid using the term “accident” and use the term “incident”.

Appropriate recommendations and suitable comments made by a Coroner, when handing down findings, will assist in the prevention of future deaths in similar circumstances.

On…at…(place of employment) AB died of the effects of multiple injuries sustained, in the course of his employment, when the scaffolding he was climbing collapsed and he fell some six metres to the roadway below.

On…at...(hospital) AB died of the effects of head injuries sustained, in the course of his employment, on ..at… when a stack of timber logs collapsed onto him.

On…at…AB was accidentally drowned whilst fishing off the beach/ swimming in the sea/ river.

On…at…AB died of the effects of poisoning by carbon monoxide inhaled when the mattress upon which he was lying caught fire as a consequence of him smoking in bed.

On…at…AB, a constable of police (RPNGC) in the execution of his duty, died by misadventure of the effects of a gunshot wound of the chest inflicted by XY, also a member of the RPNGC, in the execution of his duty, in the mistaken belief that AB was a suspected felon about to attack the said XY.

11.1.6 Excusable and Justifiable Homicide

The question to be asked is whether the accused believed that on reasonable grounds it was necessary to do what he did.

For example, where a police officer shoots an armed offender who may be placing an individual, or members of the public, at serious risk and he has no alternative but to shoot the offender.

On…at…AB died of the effects of a bullet wound of the chest inflicted then and there by XY in justifiable belief by XY that such killing was necessary for the preservation of his own life.

On…at…AB died of the effects of a bullet wound of the head inflicted by XY, a police officer acting in the course of his duty, such killing being justifiable homicide.

On…at…AB died of the effects of a bullet wound of the head inflicted by XY, a police officer, the said AB being a fleeing felon and there being an apparent necessity for such killing.

11.1.7 Natural Causes

On…at... AB died of the effects of a natural cause, namely a heart attack/ lung cancer.

11.1.8 Open Findings

On…at AB died of the effects of poisoning by barbiturates, self-ingested then and there, but whether with the intention of taking her own life or otherwise, the evidence adduced does not enable me to say.

On...at…AB died of the effects of multiple injuries sustained then and there when she jumped from the cliff top onto rocks below; but whether she was mentally capable of forming the intention to take her own life the evidence adduced does not enable me to say.

On…at…AB died of the effects of injuries sustained on…at… but as to the manner in which such injuries were sustained the evidence adduced does not enable me to say.

On…at…(hospital) AB died of the effects of multiple injuries sustained on…at…

But whether such injuries were received accidentally or otherwise the evidence adduced does not enable me to say.

11.1.9 Fires

On…at… certain real and personal property was damaged by fire, which fire originated in various rooms of those premises, having been set by a person or persons unknown.

On… certain property, namely (a motor car) owned by AB was destroyed by fire, which was set within the vehicle by a person or persons unknown.

On… at (approximate time)… certain real and personal property situated at … and owned by…was destroyed by fire which originated in the electrical switchboard of those premises by reason of an electrical fault.

On… at… certain real and personal property was destroyed and damaged by fire, which fire originated in the storeroom of those premises when a certain inflammable (flammable) substance, namely petrol, was poured within that room and ignited by a person or persons unknown.

1. A Coroner can make recommendations. These are usually directed to a government departments, private organizations, or individual persons, in order to avoid similar deaths or fires from occurring.

2. Furthermore, Sections 19 sets out the procedure in relation to charging a person with arson as follows:

“Where a Coroner's inquisition charges a person with the offence of wilful murder, murder, manslaughter or arson, the Coroner shall—

(a) read the charge to the person charged and explain its nature in ordinary language and say to him these words or words to the like effect:

"Do you wish to be sworn and give evidence or do you wish to say anything? You are not obliged to give evidence or to say anything and you will not be prejudiced in any way if you decide to remain silent. If you do wish to be sworn and give evidence or if you wish to make a statement, whatever you say, whether on oath or not, will be taken down in writing and may be given in evidence at your trial.

(b) put into writing, or cause to be put in writing, whatever the person charged says in answer; and

(c) issue his warrant for arresting or detaining the person (if a warrant has not been previously issued) and commit the person for trial; and

1. Coroners should be as precise as possible in relation to their findings. Sometimes an exact date or time of death cannot be established. The use of on or about covers the ‘within a day or two” situations, whereas between …and …will cover longer periods of uncertainty.

2. In “no body” cases, where a finding of death is made, the Coroner should clearly state “that the finding of death is made notwithstanding that the body has never been located or recovered.”

3. As previously indicated the cause of death and manner of death are two separate issues. “Cause” relates to the medical cause, whereas “manner” relates to the circumstances which produced the medical cause.

Accordingly, it is important to distinguish the terminal cause of death from the “real” or actual cause of death.

In Ex parte Minister of Justice; Re Malcolm [1965] NSWR 1598 it was conceded that the deceased died of pneumonia. What was in issue was whether the pneumonia was the consequence of poisoning by the inhalation of phosphine during fumigation work at a wheat silo. The Coroner merely found that the deceased died of pneumonia and certain evidence relative to the alleged poisoning was not obtained. The inquest findings were quashed and a fresh inquest ordered.

His Honour Judge Mc Clemens stated that the pneumonia “was not the real cause of death; this was merely the final result…”

4. The Act clearly states that the Coroner shall make findings in relation to the manner and cause of death.

12.0 APPEALS/REVIEW

12.1 Appeals

Even though there is no absolute right of appeal against the rulings or findings of a Coroner, there is still the right of review whereby an interested person may apply to the National Court for a declaration or an injunction.

Furthermore, there is no right of appeal from the Coroner’s decision on a question or finding of fact. However, there is always an interested party’s right to appeal to the National Court on a question of law.

NOTE: Section 21 allows the Attorney- General to direct a Coroner to re-open an inquest.

Because a Coroner is not bound by the strict rules of evidence, it is therefore important that Coroners are familiar with, and adhere to, the rules of natural justice. A Coroner must give an interested party, particularly a potential accused, the right to appear in person, or by a legal representative, and the right to be heard, ask questions of witnesses, even call witnesses and make submissions.

A Coroner must also give a witness the relevant warning where it appears that any evidence given by that witness may lead to self-incrimination.

Coroners should also be aware of the rules in relation to bias, and ensure that there is no actual bias, or a perception of bias.

12.2 Reopening inquests

(1) Where the Attorney-General directs a Coroner to re-open or hold an inquest, he shall—

(b) hold the inquest, if an inquest into a death has not been held because he or another Coroner has certified that the inquest was not necessary.

(b) a person authorized for that purpose by this section requests him to re-open or hold the inquest.

(3) Before re-opening or holding an inquest at the request of a person authorized for the purpose by this section, a Coroner may require a written statement of the grounds for the request.

NOTE: The underlining is inserted in the provisions of the Act by the author of the manual to highlight what appear to be discrepancies in this section of the Act and are discussed below.

NOTE: 1. The Act appears to be unclear as to whether this applies to fires as the word “death” is only used in Section 21 (1) (b).

2. It appears that the Attorney-General does not need to give reasons for such a direction.

“Authorised persons” (Section 21 (5) can also request a Coroner to re-open an inquest.

It is suggested that an “authorised person” can request that an inquest be re-opened and also request a fresh inquest relating to a death only.

The persons authorized to request a Coroner to hold an inquiry under this section are:

· and the husband or wife, father, mother, sister, brother, son, daughter or guardian of the missing person concerned.

The Coroner may require a written statement setting out the reasons for the request.

If the Coroner is not satisfied that the reasons warrant the re-opening of an inquest, or a new inquest, he may refuse to do so, but he must notify the Attorney -General of the refusal and the grounds for the refusal.

NOTES: 1. It appears that a Coroner cannot refuse to hold an inquest into a death, or re-open any other inquest, if directed to do so by the Attorney -General.

2. The request must be within 12 months of the death or the finding of a body, unless the Attorney- General directs otherwise.

13.0 EXHUMATION

Section 11 sets out the procedure in relation to the exhumation of a body as follows:

“Where it appears to a Coroner that there is grave suspicion as to the cause of the death of a person whose body has been buried, the Coroner may issue his warrant for the exhumation of the body for the purpose of holding an inquest.”

1. Once again the Coroner has the absolute discretion to make such an order and there are no appeal provisions set out in the Act.

An aggrieved relative, or other person, cannot request the Attorney –General to override the order of the Coroner.

However, an aggrieved person may make an application to the National Court to stop the exhumation, but it is suggested that such an application would only succeed where it can be shown that the Coroner was not acting in good faith, and did not have sufficient reasonable grounds to exhume the body.

2. In any other case Section 4 of the Cemeteries Act allows the Minister to order an exhumation and the transfer of the remains of a person to another burial site.

14.0 MVIL

14.1 Powers/jurisdiction

Section 48 of the Motor Vehicles (Third Party Insurance) Act 1974 makes it compulsory for all owners of any motor vehicle to take out third-party insurance cover.

In practice, this is done when the motor vehicle is registered, which is also compulsory.

NOTE: Even if a vehicle is not registered and insured, a claim can still be made.

If a person is injured, or dies as a result of a motor vehicle accident, a common law action in negligence is brought against the negligent party. This action is in effect against the insurance company.

However, the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act 1974 allows a District Court magistrate or a Coroner to act as an assessor to determine the amount of basic compensation where a death occurs.

Section 8 allows Coroners to do so on their own motion, and any enquiry is conducted without legal formalities.

Section 10 permits the Coroner to summon any witness to give evidence and/or produce documents.

Section 12 sets out “contempt offences” and a penalty of a fine not exceeding K200.00.

Section 18 sets the maximum amount of compensation that can be awarded at K5000.00 where the deceased died leaving a dependant wife or dependant child, or both. In any other case the maximum is K2500.00.

Payments can only be made where the deceased was an occupant of a vehicle or “a vehicle was most closely associated with the death”.

In the case of government vehicles payment is made by the State, and in all other cases payment is made by the insurer (MVIL).

Regulation 7 of the Act stipulates that the payment must be made to the nearest District Court, within 7 days of the date of service of notice/order on the person or organisation liable to pay.

Furthermore, Section 20 (5) imposes interest at the rate of 5% per annum on such late payments.

14.2 Procedure

The procedure for an assessment is informal and is more of an administrative task, rather than a judicial one.

The normal strict rules of evidence do not apply and it is common for Coroners to make an assessment as a part of the coronial investigation process without conducting a formal separate hearing.

15.0 ROLE AND FUNCTIONS OF CORONERS CLERK

15.1 Reporting to the Coroner

The Coroner’s Clerk must work very closely with the Coroner and keep her/him fully briefed and informed of the progress of all cases reported to the Clerk, and subsequent steps and action taken.

Sometimes the Coroner, or the Clerk, may take a report of death over the telephone.

In all cases the “Initial Report To Coroner” form should be completed immediately and entries made in the court register.

A file should then be opened and the relevant details entered on the front file cover. The cover should be updated continuously in order for the Coroner and the Clerk to be able to see at what stage the matter is, at a glance.

15.2 Record Keeping and Statistics

If proper records are kept, and regularly updated, it should be easy to compile the monthly, quarterly and annual return of statistics.

These statistics are vital in order for the Coroner and the Chief Magistrate, to assess the coronial workload and also to ascertain any trends in the types of deaths being reported. This can assist the Coroner in her/his preventative role and the Coroner can then make recommendations to relevant authorities, or persons, in order to reduce the number of deaths or fires in certain identified areas.

16.0 MISCELLANEOUS

16.1 Legal proceedings and immunity

Under the common law, Magistrates, acting as Coroners, are protected and provided immunity from civil action, and from any other legal proceedings in relation to any thing done in accordance with the Coroners Act, unless it was done in bad faith.

The provisions are set out in Sections 247-258 District Courts Act 1963.

NOTE:

1. This protection is lost where it can be shown that a Magistrate/Coroner:

2. Section 259 District Courts Act provides Clerks with similar protection.

3. The terms such as “bona fide” and “malice” are not defined in the Act, and each case would be judged on the facts and it’s merits.

Case law would be used to assist both parties, and the National Court, to decide whether a Coroner had acted in bad faith.

It should be remembered that Coroners have very broad powers, and a great deal of discretion in the way they carry out their functions and duties. Accordingly, a caution must be exercised at all times when making decisions, or giving directions.

17.0 A TYPICAL PROCEDURAL FLOW CHART

4. Coroner reads the “Police Report of Death to Coroner”, “Police History Report”, and “Medical Certificate of Death”.

5. Coroner decides whether it is a death within Section 7 and if so, may view the body (Section 12) and may request an post mortem (Section 7 (2) and Section 14).

6. If the post mortem reveals that it is not a “reportable death”, or a subsequent Medical Death certificate is issued, the Coroner records it as “natural causes” and issues a “Certificate of No Good Purpose” (Form 11).

7. The Clerk closes then the file, after a Warrant to Bury (Form 9) is issued.

8. The Coroner also forwards the relevant details to the Registrar -General to register the death (Section 8), if a medical certificate has not been issued by a doctor.

9. If it is deemed to be a reportable death (Sections 7) the Coroner directs the police to conduct the necessary investigations.

· direct any person to assist in the investigation of a death, and has very broad powers in relation to powers to:

11. At all times the Coroner has control of the body and only a Coroner can issue a warrant to Bury.

13. If a formal inquest is deemed necessary, it may be useful to place an advertisement/notice of the date, time and place of the inquest in a newspaper, or making a radio or television announcement.

However, the investigating police officer will usually arrange for interested persons to be notified.

14. Prior to an inquest being listed for hearing it may be useful to arrange a call-over of pending cases to ascertain whether the parties are ready to proceed and also to decide which witnesses need to be summonsed to appear.

15. The Coroner has the power to summons any person to attend as a witness to give evidence and/or produce documents, and can give any other directions and do anything else the Coroner believes necessary (Section 25). The penalty provisions are set out in Section 26.

16. Inquests relating to two or more deaths, missing persons, or fires can be heard together

17. The strict rules of evidence are not applicable in conducting inquests. But the rules of natural justice must be adhered to.

18. The rules of natural justice require that interested persons may seek leave of the Coroner to appear, or be represented by a lawyer, and may call and examine or cross-examine witnesses and to make submissions (Section 29). This can only be done with the permission of the Coroner who has the absolute discretion to permit a person to do so. However, the rules of natural justice must always be applied.

19. Furthermore, the Coroner also has the ultimate discretion to exclude certain persons (except lawyers and newspaper reporters) from the inquest, on the grounds of public morality (Section 30). The Coroner can direct that any portion of the proceedings not be reported in the media.

20. A Coroner may also order any witnesses to leave the court until called upon to give their evidence (Section 29).

21. The Coroner must record all evidence given at the inquest (Section 23) and the record, in writing, must be read to, and signed by the witness. This is commonly called a deposition (Form 6). It is advisable that the Coroner should also sign at the foot of each page of the deposition.

22. A Coroner has the power to forbid the publication of the inquest, or any part of the inquest, where he/she believes that publication would be in the interests of public morality (Section 30 (3) (b)).

23. No person shall insult a Coroner, interrupt proceedings, obstruct or assault a person attending an inquest or disobey a lawful order of a Coroner (Section 28 – Contempt).

24. The Coroner, or the Clerk, should make the relevant entries on the front of the file cover after each action is taken, or letters are sent or received. This will allow them to see the progress of each case at a glance.

25. The Attorney –General can direct, and any “authorised person” can apply to the open, or re-open an inquest, in certain circumstances (Section 21).

The Coroner may refuse to do so in certain cases. However the Coroner must obey the direction of the Attorney - General.

26. Once an inquest has been conducted the Coroner should hand down the findings (and comments and recommendations) and prepare a formal Inquisition (Form 8) as soon as possible.

27. Witnesses may need to be paid expenses and the Coroner should issue a Certificate for Payment of Witnesses (Section 31) and provide the certificate to the witness to produce to the Secretary of Finance (or Attorney - General’s Department).

28. If a person is committed for trial the Coroner should forward the necessary documents to the Registrar of the National Court without delay (Section 19 (4)). The Clerk should make the necessary entries in the Register and on the front of the file and close the file, which will later be sent to archives.

29. The Regulations specify the Forms which are to be used and sets out any other matters which will assist Coroners to give effect to the Act (Section 35).

30. The Chief Magistrate may issue Practice Directions that will also assist Coroners to give effect to the Act.

18.0 PRACTICE DIRECTIONS

19.0 CORONERS ACT (1953)

"the Registrar-General" includes a Deputy Registrar-General and a Registration Officer appointed under the Civil Registration Act 1963;

(1) The Judicial and Legal Services Commission may, by notice in the National Gazette—

(b) specify the province or provinces within which he has jurisdiction, power and authority as a Coroner.

(2) A Coroner appointed under Subsection (1) may hold an inquest in connection with a death or a fire that occurs, or on a dead body that is found, only within the province or provinces within which he has jurisdiction, power and authority as a Coroner.

District Officers are, by virtue of their offices, Coroners and have jurisdiction, power and authority as Coroners throughout the country.

A Coroner who is a medical practitioner is not competent or compellable to hold an inquest on the body of a person whom he attended professionally at or immediately before his death or during his last illness.

Subject to this Act, in respect of an inquest a Coroner has all the jurisdiction, power and authority that belongs to the office of a Coroner in England.

(1) A Coroner has jurisdiction to inquire into the manner and cause of the death of a person who—

(e) died while under an anaesthetic in the course of a medical, surgical or dental operation or an operation of a like nature; or

(f) died, but no certificate of a medical practitioner has been given as to the cause of death; or

(g) died within a year and a day after the date of an accident where the cause of death is directly attributable to the accident; or

(h) died in a corrective institution, rural lock-up or police lock-up, or while a prisoner or in custody; or

(i) died in a mental hospital or other institution under such circumstances as to require an inquest under this or any other enactment; or

(j) died in such circumstances that, in the opinion of the Attorney-General, the cause of death and the circumstances of the death should be more clearly and definitely ascertained; or

(k) died, not having been attended by a medical practitioner at any time within three months before his death.

(2) Subject to this section, a Coroner shall inquire without delay into the manner and cause of a death occurring under any of the circumstances specified in

(a) a certificate in the prescribed form stating the reason for coming to that decision and showing particulars of the deceased person and the cause of his death; and

(b) a copy of any medical or post-mortem report made in connection with the death; and

(5) The Coroner forwarding a certificate under Subsection (4)(a) shall send a copy of the certificate to the Commissioner of Police.

(6) This section does not relieve a Coroner from the obligation of holding an inquest where under an Act he is required to hold an inquest.

(1) Where a Coroner receives information of the death of a person in respect of which, under Section 7(2), an inquest is required to be held he shall, as soon as practicable after receiving the information, and whether or not an inquest is held, forward to the Registrar-General notice in the prescribed form of the death.

(2) Where, after considering any information as to the death of a person referred to in Subsection (1), a Coroner is satisfied that a medical practitioner knows the immediate cause of death, whether as the result of a post-mortem examination or otherwise, he may consent to that medical practitioner forwarding a medical certificate or post-mortem certificate of the cause of death to the Registrar-General.

(1) Where a dead body is found or a case of sudden death or death attended with suspicious or unusual circumstances occurs, a person knowing, or becoming acquainted with, the death or the finding of the body must immediately give notice to the nearest Coroner or commissioned officer of the Police Force.

(2) A member of the Police Force who receives notice or otherwise becomes aware of—

must without delay give to a Coroner such information as he can obtain concerning the death or the dead body.

(iii) who, in his opinion, are able to give relevant evidence respecting the facts,

(b) after hearing the evidence, give his decision or finding and certify it in writing in the prescribed form, setting forth, so far as they have been proved, the following particulars:—

(iv) the person (if any) suspected or accused of having caused the death by wilful murder, murder or manslaughter where the deceased came by his death by wilful murder, murder or manslaughter.

Where it appears to a Coroner that there is grave suspicion as to the cause of the death of a person whose body has been buried, the Coroner may issue his warrant for the exhumation of the body for the purpose of holding an inquest.

It is not necessary for the Coroner on an inquest of death to view the body of the deceased unless the Coroner thinks it advisable.

In an inquest concerning the death of a person, the Coroner may summon as a witness a medical practitioner who attended the deceased person.

(1) Subject to Subsection (2), in a summons referred to in Section 13 or by a written order a Coroner may, at any time before the termination of the inquest, direct a medical practitioner to make a post-mortem examination of the body of the deceased person, with or without an analysis of the contents of the stomach, intestines or other organs.

(2) Where it appears to the Coroner that the death of the deceased person was or might have been caused partly or wholly by improper treatment by a medical practitioner or other person, the medical practitioner or other person must not be allowed to perform or assist at the post-mortem examination or analysis.

(3) Where it appears to the Coroner that the cause of death has not been satisfactorily explained by the evidence of the medical practitioner or other witnesses brought before him, he may summon as a witness some other medical practitioner and direct a post-mortem examination of the deceased person to be made by him, whether any such examination has already been performed or not.

(4) Where a Coroner considers it advisable to have a post-mortem examination made of—

(a) the body of a person who has died and the cause of whose death is unknown or in doubt; or

(b) a body respecting which a doubt exists as to whether it is that of a still-born child,

to assist him in deciding whether or not an inquest ought to be held, he may, at any time and without holding an inquest, by written order direct a medical practitioner to make a post-mortem examination of the body and report on the examination to the Coroner.

Where it appears to the Coroner that it is necessary or desirable, an inquest concerning the death of a person may be commenced or held on a Sunday.

(2) Notwithstanding any law or custom to the contrary it is not lawful for a Coroner to forbid the rites of Christian burial at the interment of a person who has committed suicide or died by his own act, nor does a forfeiture or escheat to the State of real or personal property belonging to that person take place by reason of a verdict that he committed suicide or died by his own act.

(1) A Coroner shall inquire into the cause and origin of any fire by which any property is destroyed or damaged where—

(2) Except where the Attorney-General directs him to hold an inquest, if the Coroner considers that no good purpose would be served by holding an inquest, he shall forward to the Attorney-General—

(a) a certificate in the prescribed form stating the reason for coming to that decision; and

(b) copies of all other reports that have come to his attention dealing with the fire; and

(c) where any of the information acted on by him is information that he has obtained otherwise than from reports—a copy of his own report on the fire.

(4) After hearing the evidence, the Coroner shall give his decision or finding and certify it in writing in the prescribed form, stating—

(c) where the offence of arson has been committed, the person (if any) whom the Coroner finds to have been guilty of the offence.

(1) Notwithstanding Section 17, an inquest concerning the cause and origin of a fire shall be held at the request of a person, on—

(a) payment by him to the Coroner of the sum of K20.00 or such sum as is prescribed; and

(b) giving an undertaking to pay any further costs entailed in the holding of the inquiry.

(2) The amount of the costs payable is as certified by the Coroner holding the inquiry, and may be recovered by the State as a debt.

(1) Where a Coroner's inquisition charges a person with the offence of wilful murder, murder, manslaughter or arson, the Coroner shall—

(a) read the charge to the person charged and explain its nature in ordinary language and say to him these words or words to the like effect:

You are not obliged to give evidence or to say anything and you will not be prejudiced in any way if you decide to remain silent. If you do wish to be sworn and give evidence or if you wish to make a statement, whatever you say, whether on oath or not, will be taken down in writing and may be given in evidence at your trial. You are clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat, that may have been held out to you to induce you to make any admission or confession of your guilt, but whatever you now say may be given in evidence on your trial, notwithstanding any such promise or threat."; and

(b) put into writing, or cause to be put in writing, whatever the person charged says in answer; and

(c) issue his warrant for arresting or detaining the person (if a warrant has not been previously issued) and commit the person for trial; and

(4) The Coroner shall transmit to the Registrar of the National Court, without delay, the inquisition, depositions, statement (if any) and recognizances, with a certificate under his hand that they have been taken before him.

(a) a person has been reported to a member of the Police Force as missing and the police have not found the missing person within the period of six months after the date of the report; or

(d) a person authorized for the purpose by this section requests a Coroner to hold an inquiry,

(2) Without limiting the power conferred on a Coroner by this Act to summon a person to attend the inquiry and give evidence, a person who—

(a) has, or alleges or has alleged that he has, knowledge or information concerning a matter or thing relevant to an inquiry under this section; or

(b) the Coroner has reason to believe has, or is alleging or has alleged that he has, such knowledge or information,

is a competent and compellable witness as to the knowledge or information and the sources from which he obtained it.

(3) The Coroner shall examine on oath concerning the disappearance of the missing person, all persons—

(b) forward the decision or finding to the Attorney-General together with the depositions.

(1) Where the Attorney-General directs a Coroner to re-open or hold an inquest, he shall—

(b) hold the inquest, if an inquest into a death has not been held because he or another Coroner has certified that the inquest was not necessary.

(b) a person authorized for that purpose by this section requests him to re-open or hold the inquest.

(3) Before re-opening or holding an inquest at the request of a person authorized for the purpose by this section, a Coroner may require a written statement of the grounds for the request.

Subject to this Act, a Coroner has, for the purposes of an inquest, all the powers conferred on a Magistrate by the District Courts Act 1963 in respect of the preliminary hearing of an indictable offence, and the provisions of that Act relating or applicable to such proceedings, with the necessary modifications, apply to inquests.

(1) At an inquest taken by him, a Coroner shall put into writing, or cause to be put into writing, the evidence given before him.

(2) The deposition of a witness taken under Subsection (1) shall be read over to or by the witness, and shall be signed by him and the Coroner.

(3) Except as provided in Section 20, on the trial of a person the depositions and any statement of the person charged taken in accordance with Section 19 are admissible in evidence in the same manner and to the same extent as depositions, or a statement of the accused, taken on the preliminary hearing of an indictable offence.

(4) At the conclusion of an inquest, and whether a person is committed for trial or not, the Coroner shall—

(a) forward the depositions to the Attorney-General with the certificate under Section 10 or 17(4), as the case may be; and

(b) send a duplicate of the certificate to the Commissioner of Police and, where the inquest concerns a death, to the Registrar-General.

Except in an inquiry under Section 20, the provisions of the Evidence Act 1975, regarding the right of an accused person, and the husband or wife of an accused person to give evidence or otherwise, extend to proceedings before a Coroner.

(1) A Coroner may issue to a person whose evidence he thinks it necessary to obtain a summons in the prescribed form to attend an inquest at the time and place named in the summons and then and there to give evidence and be examined.

(3) The Coroner shall deliver, or cause to be delivered, a summons issued under this section to a commissioned officer of the Police Force.

(4) A commissioned officer of the Police Force to whom a summons is delivered under Subsection (3) shall serve it, or cause it to be served, without delay.

neglect or refusal, and after proof on oath that the summons was duly served on the person,

the Coroner may issue his warrant to bring the person before him at a time and place to be specified in the warrant.

(6) The provisions of the District Courts Act 1963 relating to the enforcement of warrants, with the necessary modifications, apply to the enforcement of a warrant issued under Subsection (5).

(1) Where a person who has been summoned to attend as a witness at an inquest—

(b) refuses to take an oath or make an affirmation or be examined at the inquest; or

(e) refuses without reasonable excuse to take an oath or to make an affirmation or to be examined on oath at the inquiry; or

(3) The provisions of the District Courts Act 1963 relating to warrants of commitment apply, with the necessary modifications, to the enforcement of a warrant issued under Subsection (2).

(a) make a person compellable to answer a question tending to incriminate himself; or

(1) Subject to Subsection (2), a person summoned as a witness shall not be permitted to be present in the room or place where a Coroner is conducting an inquest except—

(a) that a person, whether subpoenaed as a witness or not, has a particular interest in the proceedings; or

(b) the conduct or act of such a person is in any way material to the subject-matter of the inquest,

he may permit him to be present in the room or place where the inquest is being conducted.

(4) A person specified in Subsection (2) is entitled to be represented by a lawyer and to examine or cross-examine witnesses in relation to the subject-matter of the inquest.

(1) Subject to Subsections (2) and (3), where, in the opinion of a Coroner, the interests of public morality require that any person should be excluded from the room or place where the Coroner is conducting an inquest, he may exclude him from the room or place.

(2) The Coroner may not exercise his powers under this section for the purpose of excluding a lawyer.

(a) may not exclude representatives of newspapers from the room or place where the inquest is being held; but

(b) may make an order forbidding the publication of any report or account of the evidence or other proceedings in the inquest.

(4) A person who commits a breach of, or a colourable or attempted evasion of, an order made under Subsection (3) is guilty of an offence.

(1) Where he thinks fit, on the request of a person who has attended as a witness at an inquest a Coroner may grant a certificate to him of such amount as the Coroner thinks reasonable for his expenses, trouble and loss of time, computed at a rate not exceeding the rate allowed for the attendance of witnesses before the National Court in criminal cases.

(2) Where a medical practitioner not in the Public Service, who has attended a Coroner's inquest in obedience to a summons, makes a post-mortem examination of the body of the deceased by the direction of the Coroner, he is entitled to be paid such sum as is prescribed for the post-mortem examination in addition to expenses under Subsection (1), and the Coroner shall grant him a certificate for that sum.

(3) On the production to the Secretary for Finance of a certificate granted under this section, he may pay, out of moneys available for the purpose, to the person named in, or authorized by endorsement on, the certificate to receive it, the sum of money specified in the certificate.

(1) On default in payment of a fine imposed under this Act, the Coroner who imposed the fine may make out and sign a certificate stating—

(2) Where a certificate under Subsection (1) is transmitted to the Clerk of a District Court, payment of the fine shall be enforced as if the fine had been a fine imposed by that Court.

A Coroner shall sign any written summons, warrant or order issued or made by him.

(b) state in the abstract the names of all witnesses examined at the inquest; and

(i) an account of all sums of money ordered or certified by him to be paid on account of the inquest; and

(ii) an account of the number of days during which the inquest or any adjournment of the inquest continued.

(2) The Coroner shall certify the abstract and accounts to be true and correct and sign and transmit them without delay to the Attorney-General to be filed of record in such manner as the Minister directs.

The Head of State, acting on advice, may make regulations, not inconsistent with this Act, prescribing all matters that by this Act are required or permitted to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to this Act.

20.0 REGULATIONS AND FORMS

(a) a summons to a witness to attend an inquest and give evidence and be -examined shall be in Form 1;

(d) a warrant of commitment for trial of a person charged by a Coroner's inquisition under Section 19 of the Act shall be in Form 4;

(f) the deposition of a witness taken under Section 23 of the Act shall be in Form 6;

(h) a warrant for the exhumation of a dead body for the purpose of holding an inquest on that body shall be in Form 10;

(i) a Coroner's certificate under Section 7(4) of the Act that an inquest on death is unnecessary shall be in Form 11;

(h) a certificate under Section 17(2) of the Act that an inquest on fire is unnecessary shall be in Form 12.

The amount of expenses to be paid under Section 31(2) of the Act, to a medical practitioner not in the Public Service, is K6.30 per hour/day/week

To .………………………………………………………………………….

of .…………………………………………………………………………...

of .……………………………………………………………………………..

(or a certain fire, or the disappearance of .……………………………………

formerly of.…………………………………………………………………..):

By virtue of my office as a Coroner, I direct you to attend personally before me

at .…………………………………….. at .…… a.m./p.m.* on the ………..day

of…………………………………. ..20….. .., to be examined and give evidence

You are required to appear before me at .…………………. ………………………

on the……… day of………… .……….. 20.. , at ... …………..a.m./p.m.,*

to give evidence concerning the death of ……………………………………

.……………………………………………………………………………….

and make or assist in making a post-mortem examination of that body / report on your

Dated the……………. day of………… ……………………………... 20…..

WHEREAS I have received credible information that ……………………………....

of .……………………………………………………………………………………

can give evidence concerning the death of ………………………………………….

(or a certain fire or the disappearance of .……………………………………………

formerly of .…………………………………………………………………………):

AND WHEREAS ... …………………………………………………………...

having been duly summoned to appear and give evidence before me concerning the matter at the time and place specified in the summons being served and having been duly sworn before me of that summons has refused and neglected to do so to the hindrance and delay of justice:

at…. ... ……………………………………………………………………..

Dated the…………..day of…………………………………… ... 20 … .

To all members of the Police Force and to the Officer-in-Charge of the Corrective

Institution (or as the case may be) at .……………………………………….. .

of .………………………………………………………………………………

(or as to the cause and origin of a certain fire) ... ………………………………

stands charged that on the …………day of ……………………………. ... 20.. ,

he ……………………………………………………………………………..... .

……………………………………………………………………………………..

By virtue of my office as a Coroner I direct you or any of you to convey him safely to the Corrective Institution (or as the case may be)

at ... ……………………….………………………………………………………

without delay; and require you the Officer-in-Charge of that Corrective Institution (or as the case may be) to receive him into your custody and keep him safely until he is discharged in accordance with law.

Dated the ………….day of………………………………………….. ... 20.. .

Coroners Act 1953

To all members of the Police Force and to the Officer-in-Charge of the Corrective Institution (or as the case may be) at …………………………………………...…………

on the body of ... ……………………………………………………………..

origin of a certain fire or concerning the disappearance of ………………………….

formerly of .……………………………………………………………………

did wilfully insult me during the holding of my inquest (or did wilfully interrupt the proceedings of my inquest (or otherwise)) and

I therefore ordered .………………………………………………………………..

to be imprisoned for his offence in the Corrective Institution (or as the case may be) at

.…………………………………………………. for .………………………. days:

I direct you or any of you to take ……………………………………………….

at .………………………………………………………………………………..

AND I direct you the Officer-in-Charge of that Corrective Institution (or as the case may be) to receive .……………………………………………………………..

into the Institution (or as the case may be) and imprison him there for …….... days.

Dated the ………..day of……………………………………………... 20.. .

The examination of ... ………………………………………………………

of .………………………………………………………………………….

taken on the ……….day of………………. ... …………………..20…..

at.…………………………………………………………………………

before me, a Coroner, on an inquisition concerning the death of .……………

………………………………………………………………………………..

(or the cause and origin of a certain fire or the disappearance of …………….

formerly of ... ………………………………………………………………).

Dated the ………..day of ... ………………………………………………….20.. .

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WHEREAS on the .……..day of……………………………………….. 20..

of ... and …… of ... and …….. of ... personally came before me a Coroner and

K…….. and owed the sum of K……. ... to the State, to be made and levied of their goods and chattels, lands and tenements respectively to the use of the State if fail as in the condition endorsed on this recognizance.

at .………………………………………………………………………………

before me ... …………………………………………………………………….

Whereas on an inquiry made by me as to how and by what means .……………… came to his death (or concerning the cause and origin of a certain fire) I committed for trial on a charge of .……………………………………………………….. :

IF appears at the next ordinary sittings of the National Court to be held at .…… and surrenders himself to the Officer-in-Charge of the Corrective Institution there and pleads to the charge or to any other charge that is then filed against him concerning the matter and takes his trial on it and does not depart the Court without leave, then the recognizance is void, but otherwise it remains in full force.

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Coroners Act 1953

AN INQUISITION taken at .……………………………………………….

On the….,,,, day of……………….. ... 20…. (and by adjournment on (as the case

requires) before me …………………………………... …………………a Coroner

as to when, how and by what means ………………………………….………….

of ……….…………………………………………………… was destroyed or

concerning the disappearance of .……………………………………………

I FIND (Set out the circumstances of the death, fire or disappearance, as for example—

(a) That ... died at approximately (if known) on ... 20.., at ... (the place should be as specific as possible, e.g. Port Moresby General Hospital);

(a) That a fire occurred on the ... , 20.. , at the dwelling-house of ... at ...; and

(b) That the fire was caused by ... wilfully and unlawfully setting fire to the dwelling-house; or

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of .…………………………. …………………………………………………..

You may lawfully permit the body of …………………………………. ………….

Dated the…….day of……………………………………………. ... 20……….

Coroners Act 1953

WHEREAS a complaint has been made to me …………………………... a Coroner

that .…………………………………………………………………………….

whose body was buried in ……………………………………………………...

on the ……..day of …………………………... 20………... died not of a natural but

of ………………………..... …………………………………………………...

of .………………………………………………………………………………

conveyed to .………………………………… …………………………………..

Dated the ……….day of…………………………………………….... 20.. .

Form 11.—Coroner's certificate where inquest on death will serve no good purpose.

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of ……………………………………. ……………………………………

who died at ……………………………. ………………………………..

on the………… day of .………………………………………… 20…...,

by virtue of my office as a Coroner I certify that no good purpose will be served by

of .…………………………………………………………………………………….,

My reasons for coming to this decision are ... ………………………………………

…………………………………………………………………………………………

Dated the ………….day of ………………………………………..... 20.. .

Form 12.—Coroner's Certificate where inquest on fire will serve no good purpose.

occurred at ……………………………………... ………………………..

on the…..day of…………….... ………………………………………20… ,

by virtue of my office as a Coroner I certify that no good purpose will be served by

My reasons for coming to this decision are ………………………………………..

………………………………………………………………………………………..

………………………………………………………………………………………

ACKNOWLEDGEMENTS and USEFUL REFERENCES

10. Royal Papua New Guinea Constabulary – The Law and Practice on Coroners 1990

FOOTNOTES:

[1] Waller K.W. Coronial Law and Practice in New South Wales Butterworths 1994

[2] Waller K M - Coronial Law and Practice in New South Wales 3rd Edition Butterworths 1994

Papua New Guinea - Coroners' Manual

ABBREVIATIONS AND ACRONYMS

L

M

S

Section 25. Attendance of witnesses

4.3 Role of the Police – Procedure

It also creates a less formal atmosphere and comfortable courtroom environment, in what are usually difficult and emotional circumstances.

9.7 Calling Witnesses

9.10 Who can Appear or be Represented – Rights of Interested Parties

Section 49 states that:

“Evidence of any proceedings before a Coroner must be recorded.”

Furthermore, if the evidence is recorded in writing, the record must be read to, and signed by the witness.”

9.12 The Media – publication/restrictions.

NOTE: The Act does not contain any specific provisions regarding rules of evidence.

Furthermore, there is no right of appeal from the Coroner’s decision on a question or finding of fact. However, there is always an interested party’s right to appeal to the National Court on a question of law.

A Coroner must also give a witness the relevant warning where it appears that any evidence given by that witness may lead to self-incrimination.

Coroners should also be aware of the rules in relation to bias, and ensure that there is no actual bias, or a perception of bias.

Section 11 sets out the procedure in relation to the exhumation of a body as follows:

2. In any other case Section 4 of the Cemeteries Act allows the Minister to order an exhumation and the transfer of the remains of a person to another burial site.

14.1 Powers/jurisdiction

NOTE:

1. This protection is lost where it can be shown that a Magistrate/Coroner:

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ACKNOWLEDGEMENTS and USEFUL REFERENCES