Welcome back to our two-part series into investigating a death. Our previous article outlined the powers and functions of the coroner who conducts the investigations of deaths. However, what happens if the coroner’s finding is unsatisfactory or did not conduct an inquest? This article discusses how to request the coroner to hold an inquest and what to do when the coroner refuses your request. Additionally, we have provided a short case summary of our successful experience in the Supreme Court of Western Australia for an application for a limited post-mortem examination.[1]
Any person can request the coroner to hold an inquest into a death.[2] The request is made in writing to the coroner, giving reasons why you believe an inquest is necessary.[3] The coroner’s court contact details can be found on their website. However, if the coroner refuses to hold an inquest, the coroner may provide written reasons to the person requesting the inquest.[4] In the event of the coroner’s refusal, then an application can be made to the Supreme Court of Western Australia. The Supreme Court of Western Australia can make an order that inquest be held if ‘it is satisfied that it is necessary or desirable in the interests of justice. [5]
Regarding post-mortem examinations, any person can request the coroner to conduct a post-mortem examination.[6] A post-mortem examination is ‘an examination of the body of a person who has died, for the purpose of investigating the death’.[7] The coroner has the power to direct a pathologist or doctor to perform a post-mortem examination.[8] In addition to the coroner’s pathologist or doctor, the senior next of kin can also have an independent doctor present at the post-mortem examination.[9]
If the coroner refuses the person’s request, then the coroner must immediately give reasons for the refusal.[10] In these circumstances, you may apply to the Supreme Court of Western Australia for an order that a post-mortem examination is performed.[11] However, you must act fast because you must make that application within two clear working days after receiving the coroner’s notice of a refusal.[12] We have previously worked within this tight deadline and was ultimately successful. A short case summary is provided below.
Smith v State Coroner of Western Australia [2020] WASC 335 – Case summary
By way of background, the deceased left eight surviving children.[13] In this case, the plaintiff was one of the deceased’s children.[14] The plaintiff wanted a sufficient examination to be conducted and to have conclusive findings made about the deceased’s death and by what means.[15]
In light of this goal, the plaintiff engaged with Gregson & Associates to make an application for an order for a limited post-mortem examination.[16] The limited post-mortem examination application was restricted to the collection and analysis of:[17]
- hair samples;
- CT guided or blind needle biopsy of tissue organs and fluids;
- CT guided or blind needle biopsy of bone segments; and
- nail samples.
The application was supported by one of the plaintiff’s siblings[18] and relied on expert evidence.[19] The application was opposed by five of the other siblings[20] that the deceased’s death was not a reportable death on the grounds that there was evidence before the coroner’s court and the Supreme Court of Western Australia that the death of the deceased was not expected.[21]
Ultimately, Justice Smith found that the deceased’s death was a reportable death as defined in the Coroners Act 1996 (WA) (the definition can be found in our previous article). In relation to an order of a post-mortem examination, her Honour considered the ‘medical history of the deceased, the circumstances surrounding the deceased’s death, and the comments or observations of the medical practitioners treating her at the time of her death’.[22] Finally, her Honour made orders for a post-mortem examination restricted to the collection and analysis of hair and nail samples, and fluids without making a cut or incision into the body of the deceased (other than to remove a hair follicle or follicles or to make a puncture mark).[23]
[1] Smith v State Coroner of Western Australia [2020] WASC 335 (‘Smith case’).
[2] Coroners Act 1996 (WA) s 24(1)(a).
[3] Ibid s 24(1a).
[4] Ibid s 24(1)(b).
[5] Ibid s 24(3).
[6] Ibid s 36(1).
[7] Ibid s 3.
[8] Ibid s 34(1).
[9] Ibid s 35.
[10] Ibid s 36(2).
[11] Ibid s 36(3).
[12] Ibid.
[13] Smith case (n 1) [2].
[14] Ibid.
[15] Ibid [66].
[16] Ibid [1].
[17] Ibid [5].
[18] Ibid.
[19] Ibid [47].
[20] Ibid [4].
[21] Ibid [49].
[22] Ibid [69]-[73].
[23] Ibid [97].