State v Toroken, Coroner; Ex Parte Perera [1981] PGNC 7; N281 (30 January 1981)

Unreported National Court Decisions

N281

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
AGAINST
JACOB TOROKEN, CORONER, EX PARTE GEORGE NELSON PERERA

Waigani

Quinlivan AJ
26 January 1981
30 January 1981

CORONER’S INQUEST - prohibition - question of applicability of audi alteram partem rule.

CORONER’S INQUEST - nature and purposes of - investigation conducted from point of view of society - last survival of inquisitorial system - not a procedure involving “parties” - procedure in which an “interested person” has no “right” to be heard but may be granted leave to appear - interested person granted leave to appear has no “right” as such to ask questions but may be granted leave to ask specified questions - interested person granted leave has no right to address at close of inquest.

CORONER’S INQUEST - essential nature of - discretion of coroners essential to proper working of the system - the system is essential from the point of view of the interests of society.

AUDI ALTERAM PARTEM RULE AND ITS APPLICABILITY TO THE SYSTEM.

PROHIBITION - publication by newspaper, sixteen days before coroner due to announce his findings, of what were alleged to be part of those findings - frustration of whole purpose of coroner’s inquest - order nisi of prohibition made absolute.

PUBLICATION AS DESCRIBED - paucity of information available - need for coroner’s side of story to be presented.

PUBLICATION AS DESCRIBED CLEARLY HARMFUL TO GOOD NAME OF APPLICANT - question of whether relief which is not sought can be granted - question of whether this court can order that a coroner hear a particular witness or any witness on a particular point - negative answers - possible remedy by order of proper authority under s.10(h) of Coroners Act or by lifting this order absolute so that evidence can be taken.

Cases Referred To

Nyali Ld. v. Attorney-General (1956) 1 Q.B. 1

Regina v. Kent Police Authority and Others, Ex parte Godden (1971) 2 Q.B. 662

The King v. Divine. Ex parte Walton (1930) 2 K.B. 29

Rex v. Graham (1905) 93 L.T. 371

Regina v. Hocken, ex parte Jenkins (1876) 1 N.Z. Jurist Rep. (N.S.) 121

Iambakey Okuk and The Independent State of Papua New Guinea v. Gerald Sidney Fallscheer (Unreported) judgment No. SC180 of 3 October 1980

The Queen v. The Directors of the Great Western Railway Company [1888] UKLawRpKQB 30; 20 Q.B.D. 410

Ex parte The Zinc Corporation Limited; Re Briese and Others (1969) 90 W.N. (N.S.W.) 654

Regina v. Coleshill Justices, Ex parte Davies and Another (1971) 1 W.L.R. 1685

Re Ford’s Inquest (1956) N.Z.L.R. 805

30 January 1981

QUINLIVAN AJ: In thplication, which was was heard on Monday last, Mr. Brunton learned counsel for the applicant, claims (and I am here quoting from par. (c) of the grounds of theication) that, when holding a coroner’s inquest into into the death of a certain man at Kieta, the coroner:

“did not act fairly in relation to the interests of Dr. Perera contrary to the principles of natural justice.”

The particulars of this alleged denial of natural justice are given in the two other grounds; in ground (a) which is that Dr. Perera was not notified that the inquest was to be held, and ground (b) - which is the most important so I will again quote it in full:

“(b) the Cr die not not give Dive Dr. Perera an opportunity to controvert adverse testimony against him contrary to the audi alteram partem rule and the principles of natural justice.”

I had asked that, in addition to the coroner being represented at the hearing, the “interests of society as a whole” be put before me because, as I then said, two very important questions clearly arise and it is vitally important that I be addressed on them from the point of view of the interests of society. These two questions are:

(1) Does tha aldi am errtemartem rule actually apply in a coroner’s inquest, and

(2) ـ (since t is clear lear that the whorust e appion iget to listen sten to Drto Dr. Per. Perera&#era’8217; side of the story): is it competent for any “person”, othan tthorimed in d in s.23(s.23(1)(b)1)(b) of the Coroners Act, to direct a coroner (as distinct from “requesting” him - here see ss. 23(4) and 20 of the same Act) on how he or she shall conduct the inquest, or who he or she shall call as a witness, once the coroner has embarked on the holding of an inquest and before the final stage of that inquest is reached?

Unfortunately, however, some misunderstanding arose and counsel for the respondents were only briefed on general matters and I have not had the benefit of the full argument which I had expected. Since the applicant has come here from Lae and since I am due to go on circuit at the weekend, I felt that it was my duty to hear the application and not adjourn it so that further research could be made so that I would have the full advantage of counsels’ submission and argument. I asked a series of questions which seemed to me to be relevant to the two main points which are involved and I said that, in the peculiar circumstances of the case, I would intimate what I would do and then deliver my reasons on Friday, that is, today.

I made it very clear that it was purely because of the peculiar circumstances of the case - that is, the publication on 22nd December, 1980, in the newspaper of that date, of what were alleged to be the findings which a coroner was due to hand down on Wednesday 7th January, 1981 (that is, some sixteen days later) - and the need to do something quickly so that action could be taken to allow Dr. Perera to put his side of the matter forward, that I was taking this course, but the course which I took was as follow I said that because neither the coroner nor the magisterial service opposed the application and because I felt that the peculiar circumstances required it, I would make absolute the prohibition ordered by my brother Kaputin on 6th January and I was intimating, then and there, in the strongest way possible, that if I were the authority referred to in s.10(h) of the Coroners Act I would issue an order which so specified the “circumstances of the death (which) should be more clearly and definitely ascertained” that Dr. Perera was given the audience he seeks. And I went on to say that, although that was not a “direction” (for, as I then said, I have my doubts as to whether a judge can give a direction as to what witnesses a coroner shall listen to during an inquest) I felt that it would probably have the required effect because I had myself, several times, been the “authority” I now refer to.

It now falls to me to deliver those reasons which I promised on Monday and a great difficulty faces me. That difficulty is that it appears that everyone who has written on the subject of coroners and coroners’ inquisitions seems to have assumed that the reader is fully acquainted with the day-to-day workings of the system and that the function of the writer is to deal only with what one might call the exotica - the refinements, accretions, and historic oddities which, as Lord Denning said (in Nyali Ltd. v. Attorney-GeneralN281.html#_edn470" title="">[cdlxx]¹ which has beeoften referrederred to in these courts) ought to be pruned away if any transplanted system of law is to flourish in “a far off land”.

There is the added fact that the office of coroner, being the older surviving office in our legal system (and one of the oldest non-Church offices in any country) has had many of its features pruned away in the various countries to which it has been transplanted. But the parts which have been pruned away in each of the various countries where the office of coroner flourishes are different so that, in parts of the United States, the medical examiner has taken over much of his function, in other places the coroner has become an adjunct to the statistician and so on; one country has accented one aspect of developments which have taken place in modern times, the next has placed its accent on another, while a third has gone off on a tangent because the advisers to its legislature have not really understood what the province and function of the coroner is - or, for that matter, what the ordinary work of a magistrate is. (The rather acid comment under the heading “Coroners’ depositions” on p. 295 of Kennedy Allen’s “Justices Acts” 3 Ed. 1956 is an illustration from Queensland of this last example.)

The result of this, obviously, is that the text books which are available are not as valuable as one would hope. But this is not the main point which I wish to make at this stage.

The important point is that this country was, very nearly, placed in the position of that “third” type of country in 1971/1972 when proposals for a new Coroners Act were being considered. These proposals and discussions were taking place on the basis that (to quote from par. 2 of the “proposal” which finally reached practising coroners and magistrates in 1973):

“The present position of Coroner is unnecessary as the duties of the Coroner are done by a Magistrate. Therefore it is suggested that the position, title and all reference to a “coroner” be abolished. The new ordinance could be called the Inquests Ordinance.”

That project came to light at the beginning of 1973 when it had almost reached the stage of a fait accompli but it was scotched when people here pointed out that there was the world of difference between the duties of the coroner and what is “done by a magistrate. And that, in a country such as Papua New Guinea, it was absolutely essential that the difference between the two functions be kept clear.

My reason for mentioning this is not to rake over old fires. It is to bring home the necessity of seeing the difference between the coroner and the “ordinary magistrate” - and the difference between the coroner and what are called “administrative tribunals and authorities” - because it brings me back to the first question:

Does the audi alteram partem rule actually apply in a coroner’s inquest or inquisition?

It also brings me to the first of my difficulties which is that if (as I have said) there is no fully reliable textbook available, what text can I use here as a yardstick? The only answer that I can give is that I must, perforce, myself explain the part of the coroner’s work which is missing from ordinary textbooks and then deal with the various texts and authorities which are easily available. And I will now do that.

At the outset, I would repeat that different countries have, for different reasons, accentuated or attenuated different aspects of a coroner’s work so I will be dealing with the coroner and his inquisition as it is in this country - and as coroners’ law, in essence, is once the accretions made elsewhere have been pruned away.

In this country the coroner deals with three different types of matters:

(1) &#160ths af certain types

(2) ټ&#fires ires in whic which property of a certain description is damaged, and

(3) ټ&#missingssing persopersons (as defined by the Act).

There is, however, no r why list should be kebe kept fopt for all time and in the past, and in other countries, the coroner has gone out to conduct an untrammelled search for the truth in respect of a wide variety of things. In the past these have included such incredible things as stranded whales (so that the very rare baleen “whalebone” - which they contain could be expropriated to the Crown for use in the royal ladies’ corsets); “treasure trove” (so that as much of it as possible could be expropriated to the Crown); “outlaws” (so that their remaining out of the jurisdiction could be properly policed) and so on. These were things which, for one reason or another, it was felt desirable to have special “inquisitors” looking into in bygone times and in other countries. There is no reason why, in modern times and in this country, the enforcement of “s.612 exclusion orders” and the ferreting out of “traffickers in dangerous drugs” should not take their place.

The point is that a coroner conducts what is called an inquisition. This is the second oldest form of judicial proceeding known to mankind and it survives in our system only in the coroner’s court - and, to a much lesser extent, under the Commissions of Inquiry Act 1951.

The coroner can “put himself in motion” by his own mere act, but in general he relies on the co-operation of the community so, disregarding the other two types of matters with which he or she deals, I now describe a typical coroner’s matter: the death of a human being.

This is happening all the time but there are some types of death which fall within a series of definitions set out in s.10(1) of the Coroners Act. These must all be reported to the coroner’s officer who is an ordinary policeman at the local police station. He (the coroner’s officer) makes a preliminary investigation and he then discusses the report with the coroner. The coroner directs him as to whether any further investigation is needed and the coroner’s officer, although he is in fact a policeman, is bound to carry out the coroner’s orders. The coroner’s officer then supplies the coroner with written statements from all the people he thinks might be possible witnesses and also from those who, irrespective of what the policeman himself thinks, the coroner wants interviewed. Somewhere about this time the coroner makes a “judicial decision” under sub-s. 4 of s.16 as to whether, in the interests of society a post mortem examination of the body should be made and the report of that is then supplied to him. Then, when all the information is before him in writing, the coroner makes another “judicial decision”, this time under sub-s. 4 of s.10, as to whether, in the interests of society, an inquest into that particular death should be held.

That is what could be called “stage one” and, by the time it is reached the vast majority of cases can be disposed of by the coroner issuing a certificate that no useful purpose would be served, from the point of view of society, by the holding of an inquest. If, however, the coroner decides that an inquest should be held then a totally different procedure applies. By now the coroner should know, more than any living person, what the circumstances of the death are and he or she must, of necessity, have very clear views about it. That is the whole purpose of the procedure and it is also one of the many ways in which the coroner’s procedure differs from that of an ordinary court where, if the magistrate were to interest himself in a case to any greater extent than is necessary for him to be able to “put the charge” (or to explain the claim) it would be wrong for him to attempt to go on and “hear” the case. In a coroner’s inquest it would be utterly improper for him or her to have failed to study all the statements and reports in great detail before going into what we will now call “stage two”: the inquest.

The first, and most important thing to be remembered about stage two is that we are here talking about the individual who conducted stage one. And it is a fundamental feature of the system that, if for any reason, that individual is not able to conduct stage two, the coroner who takes over must study the file thoroughly before the inquest is held so that he/she will know just as much about the circumstances of the death as did the coroner who decided that an inquest ought, from the point of view of society, to be held.

I mention this because, in one of the cases listed for citation before me - Regina v. Kent Police Authority and Others, Ex parte GoddenN281.html#_edn471" title="">[cdlxxi]² - Lenning M.R. observed, atd, at p.670 that, having made up his mind on a certain point, “Dr. Crosbie Brown was disqualified from acting. He had already expressed an opinion adverse to (the applicant)”. But this does not apply to coroners’ inquests. By deciding that an inquest should be held a coroner is “expressing an opinion” adverse to somebody but that is no bar unless, of course, there is what might be called “non-professional bias”; what Sir Hubert Murray called, in the instruction which we will be noticing later, “passion or prejudice”; personal antipathy.

The second, and equally important thing to be noted about this second stage of coroners’ procedure is that, whereas the whole of stage one is done privately, the whole of stage two must be done “in the eye of the public” - which simply means “in open court”, whether or not members of the public (or for that matter, “interested persons”) actually attend that day - and nothing which is not done “in the eye of the public” can be taken into account.

When I was a law student, in Western Australia, this was impressed upon us most forceably when the city coroner (who had discovered that all the “important people” in the inquest he was conducting - and that included himself - had to pass the scene of the accident on their way to work) agreed to a suggestion that everyone meet there “informally” at eight o’clock next morning. They did that and they all then went to their offices, dealt with the incoming mail and then assembled at the coroner’s court where the inquest was resumed. It would have been perfectly proper if it had happened during stage one but this was in the middle of an inquest and it meant that something was not being done “in the eye of the public”. The coroner had forgotten that the only really “important people” in an inquest are the public and the inquest had miscarried, become void. And I note that another of the English cases cited before me - The King v. Divine. Ex parte WaltonN281.html#_edn472" title="">[cdlxxii]³ - is about an in which was was aborted (and therefore quashed) for the same reason.

This is another of the differences between an inques an adversary-system case where, by “admissions” or by failure to cross- examinxamine, the amount of material before the magistrate is automatically increased. It is also the basis for another, and very important difference between the three groups of decision-makers who are subject to supervision by this court - people who make administrative decisions of designated types, magistrates conducting judicial proceedings of the adversary-system type and coroners in their inquests. Because of the control which the coroner exercises over the whole of stages one and two, people do disclose, before the end of stage one, things which they do not want to “come out” and which they could never be expected, under normal conditions, to tell a person in authority. They do it simply because the coroner can explain that, because an inquest is a public inquiry conducted from the point of view of society it could be that the things which worry the citizen might not have to become public because they would be out of place in such a forum although they are, of course, of very great value in making the decision as to whether or not an inquest should be held. And - if one is eventually deemed to be necessary - they are invaluable as warnings of what lines of inquiry ought to be avoided because, as we shall see, “an inquest can be too inquisitive”.

And, of course, this sacredness of the “in the eye of the public” aspect of the coroner’s inquest is, of itself, the most obvious difference between that tribunal and the administrative decision-makers who are the modern subject of judicial review.

To return to our summary of coroners’ law. I have said that it is essential that the coroner knows all about the circumstances of the death before the inquest commences. The reason for this is that it is the coroner, and not the police officer assisting the coroner, who examines the witnesses and who decides what questions should, in the interests of society, be asked. And what aspects, for the same reasons, should be avoided in “open court”.

There is, however, another very obvious fact about this intensive study of the files before the inquest is opened. Everyone who is in any way “interested”, or involved should be featured on the file. And I note that Dr. Perera’s affidavit says that he was asked for a statement but he replied that the papers were in Kieta whereas he was in Lae. Whether or not this is in any way relevant to his not being notified about this inquest, does not appear. The fact is, however, that although there are no rules, as such, governing who shall be notified (as there are in other countries - for instance, in England under the 1953 Rules), the coroner’s officer usually does notify everyone as soon as the coroner indicates to him the date on which the inquest will commence. The fact that there was a miscarriage in this case must not be allowed to obscure the fact that, in the vast majority of cases, the people who are “interested” do attend in Papua New Guinea.

The point to note, however, is that this is a coroner’s inquest, an “inquisition”, and unless they have some special right (as certain people have in other countries under the Factories Act, the Mines Act, etc.) conferred on them by statute, these people who attend do not actually have any right to “appear”. They have to “seek leave” of the coroner and what they do - if they have not already done it in the earlier days of stage one - is approach the coroner’s officer and tell him that they feel that they would like to be regarded as “a person interested in the inquest”, and why. In this way their names will be on the file which the coroner has to study before the inquest opens and he/she can know of their existence. But if they do not do this it is perfectly proper for them to attend at the place where the inquest is to be held but the onus, of course, is on them to draw attention, in a proper way, to the fact that they exist. They do this by talking to the coroner’s officer before the inquest is opened.

This “seeking of leave to appear” is a very real part of the procedure even though it may usually appear to be engaged in in a rather perfunctory manner. It is, in fact, a solemn “submission to jurisdiction” and, even in places where the actual need for coroners’ inquests has almost disappeared (in New South Wales, for instance, as we shall see) it is deliberately retained.

The procedure of the inquest itself is very simple because we no longer have juries in Papua New Guinea and because we have no requirement for the body to be viewed at the time of the inquest. The coroner openly brings the files which the coroner’s officer has so laboriously created, to the place where the inquest is to be held (so that the people can see that it is a different type of “court” from what is usual) and the announcement is made that it is an inquest into the death of so-and-so. The ceremony of “seeking leave” is gone through and the coroner then explains to the people in the public gallery what it is that they can expect to see and hear. He or she then opens the files and says that he/she will take such-and-such a witness first. And, when the witness has been sworn, the coroner commences to ask him the questions which the coroner wants answered. When the coroner has asked all the questions which he/she wants answered the police officer and the various people who have been granted leave to appear are asked if they have anything which they would like to ask and the coroner decides, in regard to each proposed question, whether the person granted leave, or the police officer, will be permitted to ask it. And so it goes on until the coroner decides that the inquisition has produced the best results which, from the point of view of society, he/she can imagine possible. The coroner then makes out a final document which is called the inquisition - and that is the end of the inquest.

The concept of a coroner sitting in judgment on every question which senior counsel (who has been imported from overseas at great expense) may want to ask seems, to some people, incongruous. But in my experience this never presents any problem at all. That is the law in regard to inquisitions; that is what is meant by seeking leave and submitting to the coroner’s jurisdiction, and that is the end of the matter.

Perhaps I should mention here that many of us are liable to have a mental block about this word “inquisition” because of the most famous example of its use and because of the fact that, being regarded as too dangerous for general use, it has been abolished in our system except for coroners’ use. But it does have its own very definite uses from society’s point of view. On the other hand I must agree that every coroner must constantly remind himself/herself that no coroner can “play God” and I would adopt the words of A.P. Herbert (as have so many other judges before me) who said, in his imaginery case Tristram v. Moon Life Assurance Company (p.264 of his “Uncommon Law”) that there are three great dangers to be constantly guarded against by every coroner. These are:

“(1) that by reason of the coroner’s queer proceedings a person may wrongly be accused of crime;

(2) ҈ a at ro pro accundccund tried may be unjustly hampered and endangered by a cloud of inquest-uest-genergenerated ated prejudice; and

(3) ;ټ tithoung tried, whd, wholly innocent pert persons,sons, witn witnesses or relatives, may be blackened with coroner’s mud”.

Anends up by saying: “Even an inquest can be too inquisitive”.

T

This bhis brings me to the first of the authorities which I wish to cite. It is the classic textbook, Jervis on Coroners, 9th Ed. 1957 and the passage which I wish to quote occurs on pp. 90, 91 and 92. The main point which I wish to bring to attention (apart from the immediate relevance of the passage) is the incredible degree of “individual discretion” which, whether one likes it or not, is an inescapable part of the inquisitorial system. The learned author says, beginning at p.90:

“If a person dies following an operation, the practice of coroners ... varies considerably. Some coroners hold an inquest in every such case ... Other coroners do not hold an inquest in such cases as a general rule ...

(p.91) “... the Departmental Committee on Coroners of 1935 (recommended) that a coroner should (retain his) discretion ... (this) has the merit of only requiring an inquest to be held where there is something peculiar about the death which needs further investigation by public inquiry and thus gives effect to the basic justification for holding inquests.

(p.92) “If this view is followed, the coroner must in each case consider whether, in the light of existing medical knowledge, the death could be regarded as unexpected or peculiar. The inquiries which the coroner or his officer may have to make in such cases tend to become exceedingly technical. Coroners cannot be, and should not be expected to be, experts in the techniques ... which require specialist medical knowledge. In considering whether or not there has been any malpraxis on the part of the medical staff concerned in the operation which should be further investigated by means of an inquest, the coroner will need to rely very largely on the report of the ...” (especialist whose report has been submitted to him before the decision to hold the inquest was made) “... the coroner will also have to take into account any wishes by the relatives of the deceased person that an inquest should be held. At the same time the coroner should bear in mind the undesirability of the inquest being used to make baseless allegations of lack of professional skill. It is important that the medical profession should not be deterred from taking risks in undertaking an operation to save life by the fear of being pilloried afterwards at an inquest if the operation fails to avert the death. If an inquest is held it should be made clear that the mere fact of holding the inquest does not constitute an attack on the professional ability of the medical persons concerned.”

Apart from the passage about the “wishes by the relatives” which, because the “interests of society” must be paramount, is misleading and can sometimes lead to unfortunate trouble, this quotation explains in a nutshell the relevant law. And it brings us to Dr. Perera’s case where, incredible as it seems, someone managed to obtain a copy of a draft of something which the coroner had written at some stage of the inquest which, by that time, had been going on for well over the usual twelve months period. Suddenly, and some sixteen days before the coroner was due to deliver his findings, that draft (and I am advised by counsel that it was that draft) appeared in the form of a news report of the findings of the coroner in the ‘Post-Courier’ newspaper.

Whether or not what was in that draft in any way represented what the coroner would have said had the newspaper report not been published is a matter of pure speculation. I myself always write down all possible things in the knowledge that, at a later stage when all the available material is before me and I have had an opportunity to refer to whatever “authorities” are available to me, I will sort it all out. It involves a lot of paper because, although people say I write too much, I seldom use more than a tenth of what I have written. More to the point is the fact that the draft which I deliver on “the day” usually bears no resemblance to any previous draft. I am, of course, talking of the situation where the case is long-drawn out (as the inquest under review here was) and, for me at least, this is the way it has to be, because, as a case progresses the picture constantly changes. If it is a short case, and the “summing up” is to take place immediately, these shifts of emphasis present no problem. The memory can reliably contain them. But in the type of situation I am taking about a progressive series of notes of impressions is the only real way for me to recall that what once seemed to be the most important issue is really a passing matter and what once seemed unimportant has suddenly become the nub and kernel of the whole affair.

I mention this because of the great paucity of information as to the magistrate’s side of the story, apart from his willingness to abide by any decision of this court. And I draw attention to what was said in Rex v. GrahamN281.html#_edn473" title="">[cdlxxiii]⁴ and whatid in the recent apnt appeal in this regard. Moreover, I point out that theologians, who claim that suicide is the worst possibl, still maintain that it is wrong for anyone to presume that any man who jumps off a buildiuilding - or coconut palm, or whatever - is guilty of that sin because he could have changed his mind as he was falling to his destruction. And if they can think that I fail to see how I (even if I assume the very worst, which I certainly do not do - neither is anyone entitled to do it) can believe that this coroner would have escaped all tendencies to change his mind in the sixteen days (and more) which are clearly involved here. One has only to think of the possibility of him getting access to the work from which I have just quoted - and it is the classic work and the passage is obviously the most relevant - and one will see at a glance that it would cause him to rethink the matter especially since it goes on to say that what was published is in the field of “matters for the medical profession and not primarily for the coroner”.

Unfortunately, as I have said, the newspaper did publish what purported to be the “comments” of the coroner and these definitely do impugn the good name of Dr. Perera. The question before me is, basically, what can be done. Much as I would like to see Dr. Perera having an opportunity to put his side of the story there are two basic facts to be borne in mind.

The first is that it was the publication of the report in the newspaper which Dr. Perera is really complaining about and there has been no application before me in regard to publication of a contrary report in any newspaper, or by some other means of mass-dissemination.

What is before me is an application for me to declare absolute an order nisi for prohibition against the coroner who has still not delivered his findings. And in regard to that it is clear that the law, as I have described it, contains a number of features which do not sit well with the submissions which have been made. They certainly make it impossible for me to consider doing anything without first examining the recital of coroner’s law which I have given to find out if it is correct, and then deciding how the rule of audi alteram partem can exist in a system where there are no “parties”, where “interested persons” have to obtain leave to appear, where they cannot ask questions of witnesses unless the actual questions are approved by the tribunal and where (although I did not mention it because it is something which does not happen) they are not permitted to put their side of the story by way of “final address” or summation.

In short, I must now examine the authorities and, to do so, I wish to commence, as all magistrates and coroners do, with the standard text: Kennedy Allen’s Justices Act. At pp. 259 and 260 of the 3rd Ed. (1956) we read:

“The duty of a magistrate on hearing a complaint for an indictable offence is one which is exercised in favour of defendants. It is an investigation on their behalf relating to the charge against them ... (p.260) ... This inquiry differs in its object from, say, an inquest on death ... For an account of the office of coroner see Encyclopaedia of the Laws of England, 3rd ed., vol. 3, pp. 754 et seq.”

Unfortunately, although the Supreme Court library has the first edition and the State Solicitor the second, the third edition does not exist in this country. Nevertheless, the passage referred to is obviously this which occurs at p.422 of the first, and p.685 of the second editions in identical wording:

“Right of Persons interested to be represented by Counsel. - Again, there is no absolute right of parties interested in the inquiry to be represented by counsel or solicitor. It is a matter entirely within the discretion of the coroner. But the family of the deceased, and any persons whose conduct is likely to be called in question, or whose interests are likely to be affected by the finding of the jury, are usually and properly allowed to appear by counsel or solicitor, for the purpose of assisting the Court in obtaining all available evidence to put before the jury. But neither the parties interested nor their legal representatives have any right to address the jury, or even to ask questions of the witnesses except by permission of the coroner, who will allow it if he thinks it will assist the jury in their inquiry. It is usual to allow questioning of witnesses by counsel, but not to allow addressing the jury.”

Nowhere, as far as I am aware, has the right of audience of “people who are interested” been made absolute. In New South Wales a movement did take place to get the coroner to take on more and more matters which are outside the coroner’s traditional field and the Law Reform Commission of the State, in its 1975 “Report on the Coroners Act, 1960” said, at p.10 (par. 16):

“We substantially agree with what is said ... concerning the need for a coroner in some cases to inquire into matters affecting civil liability. That does occur in practice, and, for reasons such as those set out in paragraph 12, it is in the public interest that it should occur.” (My emphasis.)

It shouldhould be noted however that that Commission specifically said that:

“it is in the public interest that (“in some cases”) it should occur.”

It is also of importance to note that the Commission then went on to say, in the next breath as it were - in par. 17:

“... the Coroners Act, 1960, enables interested persons, by leave of the coroner, to appear personally or by counsel at any inquest or inquiry. We do not propose that this “by leave” requirement be changed.”

In short, they felt that the distinction between an inquisition and an ordinary adversary-system matter should be retained.

This distinction is referred to in Holdsworth’s classic “A History of English Law” Vol. 4 at p.529. He refers to the fact, as does Kennedy Allen, that magistrates as well as coroners can commit a person for trial in respect of an indictable offense (he is speaking of the 17th Century but the position is the same today) and he goes on to say:

“The difference between the character of the examination, hold by the justices and that held by the coroners is remarkable. It is probably due to the fact that in the former case there was an accusation definitely formulated against some specific person, which must be presented by the grand jury before the prisoner was arraigned; whereas, in the latter case, there was simply an inquiry at large into the facts, resulting in a presentment, on which the accused could be at once arraigned, without the need for any further presentment by the grand jury.”

And in Vol. 5 at pp. 171-8, in the sub-chapter headed ‘The differences between the continental and the English system of criminal procedure’ he develops this difference saying, at p.176, that once the idea of an indictment had come in, “a true criminal procedure had emerged ... It was accusatory, not inquisitorial” although the inquisitorial system was retained in certain cases. It is important to note here that, in the latest issue of the Encyclopaedia Britannica before it changed its format, the author of the article on “Coroners” points out that although this inquisitorial procedure is technically retained in England as part of the criminal law process - that is, that it is competent for the coroner to commit an alleged murderer for trial,

“... in practice he seldom has to do this, since s.20(1) of the Act provides that if the coroner has known before the jury has given its verdict that someone has been charged ... he shall adjourn the inquest until after the conclusion of the (ordinary) criminal proceedings.”

And the same thing applies in Papua New Guinea by direction of Chief Justice Phillips (which direction was endorsed by Chief Justice Mann) despite the fact that the statute says that the coroner may do it. The reason which their Honours gave is that the “ends” which are to be served by the holding of a coroner’s inquest in Papua New Guinea are not simply those of investigating crime. There is a more important function to be performed, they said, and that was to give the members of the general public an indication that “the law” is interested and to allay any fears which might arise. And to do both these things at the earliest possible moment when a need - a need from the point of view of society - arose. Therefore, their Honours said, if there were police available to investigate the crime - and they made this point because, in those days, the “uniformed police” existed only in the main towns on the coast and at Goroka in the highlands - all matters of criminal investigation should be left to them. Their Honours also pointed out that in the process of showing that the law was “interested”, and in the process of properly allaying fears, a coroner naturally listened to rumours, expressions of fears, and many other things which, in an ordinary criminal court, are totally inadmissible and that, for this reason - and if a “committal” case was possible the holding of an inquest, for “committal” purposes only, was inappropriate.

Mr. Brunton accepts this difference between the inquisitorial and accusatorial tribunal but he submits that at some stage - and in particular that in the case with which we are dealing - the inquisition changes its nature and becomes accusatorial. In one way, of course, he is right and that is what unfortunately occurred when the ‘Post-Courier’ published its report. But the fact is that these changes are at a subsidiary or incidental level. The first is where a person is charged by a coroner. Here the effects are set out in Amendment No. 43 of 1957 and are very limited. The other possibility is, as I have said happened here, where something which impugns somebody’s good name comes out incidentally during “investigation-at-large on behalf of society”. In such a circumstance one would hope that that person would be allowed to reply but as to whether this in fact happens depends on circumstances. It cannot be said to change the nature of the “investigation-at-large on behalf of society” - which is what an inquest is - into a private forum or to confer an absolute right to be heard.

The fact is that there are two quite radically different systems operating for two quite radically different purposes and an inquisitorial tribunal can neither be diverted from its course nor can its nature change. This is the precise reason why, in common law countries, the inquisitorial procedure has been abolished except for the one instance where it is continued by statute. It is also the reason why, in Europe and in other “continental” countries, where it has allegedly been retained, its very nature had to be changed and the defendant given the rights of the system which applies there.

In Regina v. Hocken, ex parte JenkinsN281.html#_edn474" title="">[cdlxxiv]⁵ Williams, J. said:

“In considering this question, it will be well to determine, in the first instance, what is the nature of the enquiry before the Coroner, and the result of tnding of the Coroner’s jury. The enquiry is not for tfor the purpose of deciding whether or not a person is guilty of an offense, or to determine litigated rights; it is a preliminary enquiry, which may or may not end in the accusation of a particular individual. Per Tenterden, C.J., in Garnett v. Ferrand (6 B. & C., 626). An accusation is the worst result that can happen to any one upon such inquiry ... the question whether any particular person shall be accused, arises only incidentally, and my not arise at all.”

Mr. Brunton’s point, of course, is that it is all very well for a judge to say, in a theoretic way, that “it may not arise at all”. The fact is that it did arise in his client’s case. It is one thing to talk about an accusation being “the worst ... that can happen” (as if it was something which does not greatly matter) but the fact is that, if there is no opportunity to answer it, it can destroy a man’s good name.

The Constitution, he points out, guarantees everyone, irrespective of who he or she may be, protection. And in guaranteeing, by s.59, that the principles of natural justice shall apply, it says that:

“The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

He says that because the coroner failed to allow Dr. Perera the right to answer, in his inquest, certain allegations which were apparently made against him, it is clear that there has been a denial of natural justice and that, for this reason, s.155(3) of the Constitution (which requires me to “review any exercise of judicial authority”) requires me to review the conduct, by this coroner, of this inquest. And that s.155(4) of the Constitution empowers me to:

“... make, in such circumstances as seem to (me) proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of (this) particular case.”

But there are two observations and two questions which occur here. The first is that s.59 specifically says:

“Subject to ... any statute, the principles of natural justice ...” etc.

and apart from this there is the point that, as Professor de Smith points out at p.186 of his “Judicial Review of Administrative Action” 2nd Ed. 1968:

“Concepts of a fair hearing in accordance with natural justice ... vary significantly in different contexts”.

This latter point can best be seen if we imagine the newspaper publishing a report about the undelivered judgment in a civil or a criminal case. It is futile to say that this could not happen because the fact is that this “could not happen” and yet it did. But is it suggested that the parties to the civil case could be forced back into court, or that the acquitted defendant could be put back in jeopardy, so that the content of a newspaper report can be refuted? There is a logical incongruity here because it appears, from the little information before me, that after he wrote to the coroner’s officer that the files were in Arawa (par. 7 of applicant’s affidavit) applicant knew nothing more until he saw the newspaper report of 22nd December. Because of this it could be said that his application should be against the newspaper. But I do not wish to develop these themes further.

The two questions are, firstly: What order or orders am I required to make under s.155(4)? and, secondly: To or in respect of the interests of whom, am I to do justice? And it is clear that these are the pith and substance of this application. And they concern me greatly.

The only application before me is for the interim injunction, which my brother Kaputin, A.J. issued on 6th January to hold everything in a position of stasis, to be made an order absolute of prohibition against this coroner. But whereas it is clear that, no matter what conceivable point of view one takes, that order nisi was absolutely necessary when my brother Kaputin, A.J. made it, the present application seems to me to be unproductive. Since the inquest has, due to the intervention of the newspaper item, totally failed of its purpose and aborted, I have not the slightest hesitation in certifying this, in the public interest, so that everyone will know - since they, the people, are the ones on whose behalf it is being conducted - can know that nothing further can be done, by the coroner, in it, and so that something else can be done in its place. It is a de facto situation for which there is no precedent anywhere or, if I may say so, conceivable, and something should be done, from the point of view of society, to get another inquest going. But I am, here, still speaking, as I have all throughout these reasons, of “the interests of society”. I cannot see how the order applied for does anything to advance Dr. Perera’s cause.

Unless, that is, there are ancillary orders in the “agreed draft” for the order which counsel informed me they had at the bar table. Perhaps I am not expressing that correctly. I in fact know that there are ancillary orders sought because counsel asked me if I would order that a new coroner accept the depositions of witnesses who gave evidence before the present coroner; and that he hear Dr. Perera. What I mean is that these are not sought in the notice of motion and I have not actually seen the draft. My reason for not seeing it is (apart from a doubt, which I do not intend to deal with here, as to whether there should be notice of such ancillary orders in this case) is that although I have heard full argument from the applicant, I have not (because of the misunderstanding which I mentioned previously and because it would have entailed a delay of over a month if I was to adjourn the application) heard full argument from the point of view of society as to my duties and powers in regard to the issuing of orders that an inquest should be held or that a coroner must hear certain witnesses or evidence, and I wished to advise myself on these points.

And so we come, once again, to the same question. But before looking at it I must return to the second of the two we are presently studying: To, or in respect of the interests of whom, am I to “do justice”? I have discussed the situation if the answer is: “Dr. Perera and him alone”. This leads, unerringly, to the treble-barrelled question: Can I direct that an inquest be held despite the wording of s.10(h) of the Coroners Act and can I also direct the coroner as to what witnesses he shall call and what lines of evidence he shall investigate in his inquest. But there are other “people” in respect of whom it could be said that I must “do justice”.

There is the coroner. I have already said all I need to say about the effect which the newspaper report, sixteen days before he was due to have handed down his findings, has had. And I have said it because the maxim omnia praesimuntur is binding on me and because what I have said is pure common sense. His good name is gravely involved.

There is the coroner’s officer who presumably received Dr. Perera’s reply to the effect that, whereas he was in Lae, the files were in the North Solomons Province. And there are the survivors of the dead man’s family and group. In respect of these two, also, I have said (or quoted) all that I wish to say. Then there are “the people”, the existing and unborn generations of Papua New Guineans on whose behalf I have a duty to do what I can to “guard and pass on ... the noble traditions” which existed before 1975.

This is what has been worrying me all along. The essential part of the inquisitorial system - and the reason why it had to be abolished for all “normal” cases - is what I described, when I was quoting the long passage from Jervis, as the “incredible degree of individual discretion” which it gives the coroner. To grant the ancillary orders would be to take that essential characteristic away. It would, in fact, be to destroy the only vestige of that system which still survives, and has deliberately been retained until now; the coroner’s inquest.

Let me not be misunderstood here. If it can be shown that I am bound to issue the ancillary orders then, in accordance with my oath I will, naturally, issue them. But neither my oath nor the institution of the coroner’s inquest exists for purely personal interests. My oath is to “do right to all manner of people in accordance ... with the Constitution and the laws of ... Papua New Guinea ... without fear ...” etc. and the words “all manner of people” includes “the people” and the words “the laws of ... Papua New Guinea” includes the institution of the coroner in respect of whom Kennedy, J. said, in the leading case of Rex v. Graham (supra)N281.html#_edn475" title="">[cdlxxv]⁶ at p.377 column one:&#82>“... it seems to me that the intention of the section in the words “whom he thinks it expedient to examine” was to invest the coroner wiconsiderable amount of discretion ...”

The wore word “expedient” has been changed in s.12(a) of our Act so that it reads: “shall examine ... all persons whom he thinks fit to examine or who tender their evidence ...” but, since Dr. Perera apparently did not “tender” his evidence, it appears to me that that interpretation is binding. And I refer again to the fact that s.59 of the Constitution says that: “Subject to ... any statute, the principles of natural justice ...” etc. The question before me, therefore, is whether that discretion has been reduced, by non-statutory means, in a country where coroners operate as we know them.

In this country, certainly, it has never been done. There have been attempts, but they all have been valiantly resisted. The recent case of Iambakey Okuk and The Independent State of Papua New Guinea v. Gerald Sidney FallscheerN281.html#_edn476" title="">[cdlxxvi]⁷ has been cited but that it is in the normal field of “judicial review of administrative action” and it is not cognate. There was the Directive to Coroners of 8th February, 1972, but that did not attempt to direct coroners on how they were to make their judicial decisions as to whether an inquest should or should not be held, nor did it attempt to tell them what witnesses they should call or what lines of evidence they should develop apart from saying:

“Recent publicity given to demands for compensation ... has underlined the need for the coronial investigation ... to be completed as soon as possible. Usually the coronial inquiry is the only source whereby official knowledge is gained of all the relevant facts. A coronial inquiry also serves a secondary purpose in that it is a demonstration of official concern about a death.”

And so on. It is in substantially the same words as the directive issued in 1954 when lack of “official concern” over the deaths of some carriers was alleged to have been the cause of the Telefomin killings. It absolutely preserves the coroner’s independence. And it also indicates, as nothing else can, how invaluable the coroner service has been to the development of this country. It fits in well with the unique tradition which had been established here.

It all began with Chief Justice Murray’s Circular Instructions Nos. 84 and 51(3)7 which were issued before the First World War, re-issued in the 1920s and again in 1937. And the 1954 instruction was read by magistrates and coroners in the light of those instructions, as were the directives of Chief Justices Phillips and Mann which I referred to earlier. Circular Instruction No. 51(3)7 was well in advance of its day and it opens with the words:

“Unnecessary interference with native life should be avoided.”

Circular Instruction No. 84 “drew attention” to the fact that, although the Coroners Act seemed to give coroners powers in all cases of the various stated types of death, that power should not - with the sole exception (the sole exception of those days, we have added others since) of deaths in a gaol - be used without proper thought being given to the possible repercussions which the exercise of that power might have. It reminds me of my present position. It says that:

“... unless reasonable grounds for suspicion exist (and these must be such as would lead a reasonable person, acting without passion or prejudice, to come to the conclusion that a person came to his death by violent and unnatural means) ...”

the coroner should keep out of the matter. Again, it relies on the judicial discretion of the individual coroner.

These instructions were issued time and time again in particular it was issued in 1937 when Judge Gore pointed out that some people were confusing a coroner’s inquest with a preliminary inquiry into an indictable offence - the point which both Holdsworth and Kennedy Allen make in the passages I have already quoted. And, as I have mentioned, these formed the background against which the directives of Sir Beaumont Phillips, Sir Alan Mann and everyone else were understood by magistrates.

The point is, as I mentioned at the outset, that the purposes for which the inquisitorial system have been retained for use by the coroner are very real and very important, and they are exclusively society-oriented. They require the unrestricted collection of information - unrestricted in the sense that, although the coroner must comply with the law, as must everybody else, and although he/she must comply with the dictates of common sense (which is not necessary for everyone but it is for the coroner, especially if those “dictates” have been embodied in official directives) he/she is also expected to collect as much information as possible in cases of the types designated by the legislature so that the healthy state of society can be maintained. And it is on the basis of that information that his/her decisions as to whether a post mortem shall be ordered or as to whether an inquest should be held, are made. How could anyone who does not have that information - and, as I have mentioned, I have none at all - interpose and order that an inquest be held. Or that the coroner should call this or that witness?

I would like to quote from the most famous statement of all on coroners. Famous, not simply because of the curious circumstance that the speaker was a judge (Judge Wells) and the foreman of the coroner’s jury was also a judge (Judge Lloyd) but also because it gets out the importance of the aspects of coroners law which I am dealing with here. It is the address in the Crewe murder case. It can be found in Jervis, at p.508, Smith at p.52 and in other works:

“... the office of coroner was an important one, and his function was an important one. The coroner, also, had one advantage from a certain point of view - namely, that being fettered by no precise rules of evidence, and bound to collect as far as he could all information and knowledge of disasters from neighbours and others who could throw any light upon the cause of death, where death had taken place under suspicious circumstances - he could often times collect evidence, facts, and statements which, whether or not they might ultimately be capable of being turned into evidence against the parties who were to be put up on their trial, were often very valuable as supplying material for investigation by the police, and as affording clues which might lead to successful inquiry. If the coroner rejected evidence which lay before him, on the supposition that he was in the position of a Judge who had to try a prisoner, and that the same wide rules of exclusion of evidence which might act against a particular individual in the dock ...” (apply to him) “...he would throw away a good deal of the remaining usefulness of that institution. the coroner’s inquisition could not be too thoroughly understood. It ... led to proper investigations, preventing the hushing up of matters ...”

(which should, for one reason or other - from the point of view of society - be brought out into “the open”).

This country has a very proud tradition in regard to this institution which “cannot be too thoroughly understood” because it “leads to proper investigations” and “prevents the hushing up of matters”. That tradition has always been, firstly - although this is a matter of only minor importance - that the coroner cannot be interfered with in the exercise of his discretion as to whether he/she should hold an inquest. I say that this is of small importance because the proper authorities can, under the statute, direct that another coroner shall hold one if the first coroner decides that he will not, and it is simply a matter of “wisdom of choice”. The important point is the second. It has always been traditional here that coroners are immune from direction as to what witnesses they will hear, what evidence they will accept or reject, and what decision they will make.

I cannot go into that history here but I mention it because, as I have said, if I were to give an affirmative answer to the two questions which are in issue here:

(1) does the audi alteram partem rule actually apply in a coroner’s inquest, and

(2) &#1s it competent for me tome to direct a er asow hehe shonducarticular inquest, est, who hwho he or e or she sshe shall hall call as a witness and what evidence he or she shall receive,

Id in destre system. Itm. It has has alwayalways relied on the integrity of those who have exercised an unfettered discretion to decide what witnesses will be called, and what evidence will be received, and that unfettered discretion is its life-blood.

If, in law, I have to do that then, as I have said, I will. I have only given the explanation which I have given (at such great length, I am afraid) because it is important that we see what it is that we are dealing with here. But am I bound to do it?

First, let me repeat that I agree wholeheartedly with the wish which everyone clearly has that Dr. Perera’s side of the story be heard. But is it true that in order to allow this, I must deprive this country of a very important and useful weapon which it needs if society is to be protected?

Certain authorities have been cited before me to say that I should, but on studying them I am fully of opinion that they do not support the proposition that the audi alteram partem rule applies in coroners courts - although, as I have said, the coroner must always remember the dangers which A.P. Herbert pointed out and take every step possible to see that these are avoided.

And I am satisfied that these authorities do not enable me to issue directions to the coroner as to how he or she shall conduct the inquest, beyond pointing out - as I have pointed out earlier in this judgment - the general rules which apply.

The first of these authorities was the leading text book: de Smith on Judicial Review of Administrative Action. Unfortunately we only have the second edition here although the third edition was quoted. But I am well acquainted with the work the unless the other authorities show that it is relevant, I find that it does not help me because of the unique nature of a coroner’s inquest as a public hearing conducted, by statutory direction, according to the inquisitorial system.

The other authorities cited are, and I will deal with them one after the other: The Queen v. The Directors of the Great Western Railway CompanyN281.html#_edn477" title="">[cdlxxvii]⁸ in which a coroner&#8 jury jury found that “the directors ... did feloniously kill and slay the said Theophilus John George against the peace of our lady the Queen, her crown and dignity” and the inquisition was made out accordingly. To understand this case one has to appreciate that the “inquisition” referred to is not the inquest but the form made out as a result of the jury’s finding. The law at that time was that that document must conform to very rigid rules as to many things: the size and quality of the paper, the ink used on it and the wording. And in the fifth volume of his History of English Law, Professor Holdsworth gives a very interesting case, at p.178, of what is meant by the rule that the inquisition “must pray process against all the defendants, and must name them by their right names”. This inquisition did not name any of them and it was quashed. The law has, of course, since been changed and in any event, I consider the case to be of no assistance.

The next was Ex parte The Zinc Corporation Limited; Re Briese and OthersN281.html#_edn478" title="">[cdlxxviii]⁹. In this case the coroner purported to issue an order for a group of people to go into the corporation’s factory and inspect and photograph certain machinery. The specific basis of the order was a subsection of the Coroners Act which empowered him to issue an order to a medical officer to conduct a post mortem and the court held:

“We do not think that the terms of this subsection are sufficiently wide to enable the coroner to order photography and measurement of the place of death.”

And so, again, I feel that the case does not apply.

The third was Regina v. Coleshill Justices, Ex parte Davies and AnotherN281.html#_edn479" title="">[cdlxxix]¹⁰. This was not a coroner’s case and I find that it does not actually assist me because of the unique circumstances of coroners law.

The next was The King v. Divine. Ex parte Walton (supra)N281.html#_edn480" title="">[cdlxxx]¹¹ where the coroner took inco account material which he and the foreman of the jury had collected when they went off on a private view. This offends agains first rule of a coroner’s inquest which I mentioned before, the rule that an inquisiquisition shall be conducted in the public eye and that the only material on which the final decision can be based is material which was put before the inquisition “in the public eye”. It is of course a case on the grounds of “natural justice” but it does not assist me in the determination of this application beyond being invaluable, as I mentioned at p. & above, as an illustllustration of the absolute difference between a coroner’s inquest and an ordinary adversary-system court case.

The otheroritire Fallscheer’s case (supra)N281.html#_tml#_edn481" title="">[cdlxxxi]¹² and Regina v. Kenice Aute Authority and Others, Ex parte Godden (supra)N281.html#_edn482" title="">[cdlxxxii]¹³ (which I havtioned at pp. 1pp. 19 and 6 respectively) and two others whcih were not cited on these points and which, I find, do not assist me.

I am satisfied that I have neither the power to directw coroner to hold an inquesnquest in this case nor to direct him/her to hear a particular witness or to develop a particular line of investigation. These powers, in so far as they exist at all, repose with the “proper authorities” who can, by virtue of s.10(h) of the Coroners Act, make the order which I mentioned on Monday last.

I am also satisfied that the coroner’s inquest the subject of the order nisi of Kaputin, A.J. in this matter has, as a legitimate public inquiry into the death of Benedict Tanihe, miscarried and that in miscarrying, a person who was not in any way involved in the inquest (although he was clearly “interested”) has been the subject of the publication in the ‘Post-Courier’ of material which adversely affects his good name.

And it is also very clear that one of the results of the unique history which this country has is that, although A.P. Herbert says, in the work to which I referred earlier - Tristram v. The Moon Life Assurance Company (and I note that the underlining is mine):

“The only one-man judicial tribunal whose pronouncements are never, in practice, subjected to a ‘second opinion’ is the coroner. The High Court has power, both at Common Law and by statute, to quash a coroner’s inquisition and order a new one. But these powers are rarely used and do not cover the whole mischief.

There are three dangers: (1) that by reason of the coroner’s queer proceedings a person may wrongly be accused of crime; (2) that a person properly accused and tried may be unjustly hampered and endangered by a cloud of inquest-generated prejudice; and (3) that, without being tried, wholly innocent persons ... may be blackened with coroner’s mud. The High Court’s powers may avail in an extreme case of (1) but rarely in (2), and never in (3), for the mischief is done. Moreover, the coroner may do much damage without doing anything of which the high Court could properly take notice.”

I have a special duty to do what I can for Dr. Perera.

A.P. Herbert’s case of course was a fictitious one but as Lord Hewart, Lord Buckmaster and Lord Atkin all point out, it is a good statement of the law in England. In Papua New Guinea however, my duty is to do what I can to see that the principles of natural justice apply.

Counsel have indicated what they consider to be one possible way in which that could be done. They have suggested that the evidence which has already been taken before the coroner should be taken “en bloc” by a new coroner as evidence before him/her. Because of the wording of our statute, however, I feel that I am bound, for the reasons given in the case of Re Ford’s InquestN281.html#_edn483" title="">[cdlxxxiii]¹⁴, to say that this course is not open. As I have said before, the fundamental principle of stage two of a coroner’s proceeding is that only the material put before the coroner while he/she is acting “in the public eye” can be considered. And the material which comes from a witness must be testimony given by that witness at that inquest or material which is made admissible by statute. And I am not the legislature.

Because of the peculiar circumstances of this case I will, as I said on Monday, make absolute the order for prohibition which my brother Kaputin, A.J. issued the day before the coroner was due to deliver his findings. But any order of prohibition can always be rescinded and I would be prepared, if this will assist the matter (and the present coroner could intimate, without any order from anyone, that he was prepared to hear Dr. Perera) to rescind that order so that Dr. Perera’s evidence can be taken. Since I will be in Goroka on Monday and there will be several counsel assisting me there, an application to this effect could be made to me at Goroka. Alternatively, the procedure I mentioned last Monday should produce good results.

My decision, therefore, is in two parts. The first is that no ancillary orders can be made - it goes without saying that I can and do make no order in regard to or to or for the newspaper because it has not been made a party to these proceedings. The second is that, subject to the possibility that I may, on a consent application being made to me at Goroka, rescind this: THE ORDER AS ASKED SHALL BE GRANTED and an order absolute of prohibition shall issue out of the Registry in due course but that until that order shall issue in written form, this announcement shall suffice to enjoin the coroner from proceeding further in this inquest.

Solicitor and counsel for the State: B.D. Brunton

Solicitor for the Respondent: R. Mellor

Counsel: C.J. Bourke

N281.html#_ednref470" title="">[cdlxx] ^{(1956) 1 Q.B. 1}

N281.html#_ednref471" title="">[cdlxxi] ^{(1971) 2 Q.B. 662}

N281.html#_ednref472" title="">[cdlxxii] ^{(1930) 2 K.B. 29}

N281.html#_ednref473" title="">[cdlxxiii] ^{(1905) 93 L.T. 371}

N281.html#_ednref474" title="">[cdlxxiv]^{(1876) 1 N.Z. Jurist Rep. (N.S.) 121 at p.127}

N281.html#_ednref475" title="">[cdlxxv] ^{(1905) 93 L.T. 371}

N281.html#_ednref476" title="">[cdlxxvi]^{(Unreported) judgment No. SC180 of 3 October 1980}

N281.html#_ednref477" title="">[cdlxxvii]^{[1888] UKLawRpKQB 30; 20 Q.B.D. 410}

N281.html#_ednref478" title="">[cdlxxviii] ^{(1969) 90 W.N. (N.S.W.) 654}

N281.html#_ednref479" title="">[cdlxxix] ^{(1971) 1 W.L.R. 1685}

N281.html#_ednref480" title="">[cdlxxx] ^{(1930) 2 K.B. 29}

N281.html#_ednref481" title="">[cdlxxxi]^{(Unreported) judgment No. SC180 of 3 October 1980}

N281.html#_ednref482" title="">[cdlxxxii] ^{(1971) 2 Q.B. 662}

N281.html#_ednref483" title="">[cdlxxxiii] ^{(1956) N.Z.L.R. 805}