Freckelton, Ian --- "Expert evidence in coroners' inquests" [2022] PrecedentAULA 49; (2022) 172 Precedent 10

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EXPERT EVIDENCE IN CORONERS’ INQUESTS

By Ian Freckelton AO QC

Expert evidence is fundamental to the resolution of coroners’ inquests. Like expert evidence in all litigation, it consists of evidence of fact and evidence in the form of opinions: namely, inferences drawn from data.^[1] It has the potential to provide an informed perspective for a coroner on evidence of fact given by other witnesses and to enable interpretation of information that is otherwise available. Expert evidence can come from witnesses who are independently commissioned to provide expert opinions, as well as from persons such as treating doctors who have an ongoing clinical knowledge of the deceased person.

However, expert evidence in inquests comes before coroners in a context that is inquisitorial,^[2] and latitude is given by coroners in determining the admissibility of expert opinions that might otherwise have fallen at the hurdle of the common law rules of admissibility or ss79 and 80 of the Uniform Evidence Acts.

In inquests, expert evidence, such as from forensic pathologists, toxicologists, safety experts, and mental health professionals providing psychological autopsy evidence, is mostly commissioned by coroners. In some instances, coroners permit expert evidence that has been commissioned by parties who are granted leave to appear; however, the burden lies upon a party to persuade the coroner that such party-generated evidence will materially assist the inquest’s investigation of a death.

EVIDENTIARY ADMISSIBILITY

The rules of evidence familiar from adversarial litigation do not strictly apply to inquests, leaving coroners able to inform themselves as they deem appropriate.^[3] However, the general principles of evidence law continue to provide a yardstick for coronial proceedings in discerning between evidence that is of minimal or low probative value and evidence that is suitable for reliance by coroners in their findings, comments and recommendations. This means that it is legitimate for a party to seek to persuade a coroner to refrain from placing weight on expert evidence that:

• is based on hearsay;

• is reliant on unproven facts or assumptions;

• is unreliable in its methodology; or

• constitutes precluded conjecture.^[4]

In R v Doogan; ex parte Lucas-Smith,^[5] Whitlam J observed that ‘the opinion of an expert is not to be tested in coronial proceedings in any different way to ordinary civil litigation. The object of cross-examination remains the same as long as the evidence is relevant.’^[6] Similarly, it has been held that ‘the rules relating to expert evidence at common law are largely based on good sense and fairness’ and thus should be applied in substance even where they do not technically apply.^[7]

EXPERT EVIDENCE ABOUT CAUSATION

An important issue in many inquests is whether conduct or omissions caused a death. Expert evidence is generally placed before a coroner on such an issue.

Two 2020 High Court decisions in England are illustrative. The first is a decision of Pepperall J in Chidlow, R (on the application of) v HM Senior Coroner for Blackpool and Fylde^[8] (Chidlow). In this case, Mr Bibby fell ill and an ambulance was called but it was significantly delayed. During the delay, Mr Bibby suffered a cardiac arrest and died. The Coroner’s jury heard evidence from a consultant in critical care and emergency medicine that had paramedics attended Mr Bibby before he suffered a cardiac arrest, on the balance of probabilities he would have survived. Nevertheless, the Coroner ruled that it was not safe to leave the issue of a causal link between the delay and Mr Bibby's death to the jury. By judicial review proceedings, Mr Bibby's brother sought a declaration that the Coroner had acted unlawfully in declining to place the issue before the jury; an order quashing the record of inquest; and an order that a fresh inquest be held before a different coroner. By reason of Mr Bibby’s right to life under Article 2 of the European Convention on Human Rights,^[9] the Coroner had been obliged not just to determine who Mr Bibby was and how, when and where he died, but also to record in what circumstances he came by his death and to ensure an effective and independent investigation into his death.^[10]

Justice Pepperall found that the question of a causal link between the delay in the attendance of the ambulance and Mr Bibby’s death should have been left to the jury if there was sufficient evidence upon which the jury could safely find that, on the balance of probabilities, such delay had more than minimally, negligibly or trivially contributed to his death. The case raised the question of whether causation in a coroner’s court could be proved by statistical evidence as to the prospects that Mr Bibby might have survived had he received expert treatment in good time. Justice Pepperall concluded that:

‘In considering whether it is safe to leave such an issue to the jury, a coroner must have regard to all relevant evidence. In addition to evidence relating to the particular deceased and the circumstances of his or her death, that may include general statistical evidence drawn from population data such as the rate of survival in a particular group. Such general statistical evidence alone is, however, unlikely to be sufficient.’^[11]

Justice Pepperall accepted that the bare statistic that ‘80% of severely ill patients survive provided they receive expert treatment before they suffered a cardiac arrest is not sufficient to prove causation’. However, he concluded that the Coroner had fallen into error in dismissing the expert evidence and determining that the lack of a clear cause of death prevented the jury from being able to consider the possible causal effect of the delay in treatment.^[12]

In the second decision, that of Dingemans LJ, Griffiths J and Judge Lucraft QC (the Chief Coroner for England and Wales) in Smith R (On the Application of) v Assistant Coroner for North Wales^[13] (Smith), the questions on judicial review related to the threshold for causation of death in a coroner’s court (on this occasion the Coroner was sitting without a jury) and the standard of proof for causation of death, as well as whether it had been irrational for the Coroner to fail to accept the evidence of an expert about causation of death. The deceased woman, Miss Smith, hanged herself in the context of suffering a psychotic illness. An expert forensic psychiatrist, Dr Maganty, who was commissioned by the Coroner, concluded that:

‘... in my opinion, on the balance of probabilities, the death of Miss Leah Smith was not only predictable but was entirely preventable. If she had received appropriate antidepressant medication at an early stage, therapeutic doses of an appropriate antipsychotic at an early stage and received inpatient admissions/home treatment care as per good practice guidance with appropriate treatment at an early stage, on the balance of probabilities, it is likely that she would have made a good recovery.’^[14]

The expert accepted that there were never grounds to detain the deceased woman in hospital and did not criticise her having been treated at home. The Coroner applied the Chidlow decision and concluded that the death of Miss Smith was preventable.

The High Court observed that the expert’s use of statistics was couched in very broad terms, which made it difficult to apply them to the death of Miss Smith when deciding whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to her death. The High Court distinguished cases such as Chidlow about whether the question of causation should be left to a jury, from a case about what verdict or conclusion was open to a coroner. Lord Justice Dingemans, Justice Griffiths and Judge Lucraft noted that:

‘An inquest is, as the name suggests, an inquisitorial process. The Coroner was not bound to accept the evidence of Dr Maganty, even if it stood alone. In fact, it did not stand alone. It was given before the evidence of the treating psychiatrists had been given, which undermined some of Dr Maganty's assumptions. ... Dr Maganty's Report and, even more, his evidence in person subsequently, suggested that he was giving his opinion that "the death of Miss Leah Smith was not only predictable but was entirely preventable" with great confidence but based on a relatively insecure evidential foundation. When tested, his evidence on causation appeared to be little more than an assertion ... His criticisms of the lack of cover were well-founded, as the Coroner decided, and she accepted and adopted many of them, but it did not follow that they caused Leah's death.’^[15]

Thus the High Court rejected the appeal and concluded that the Coroner’s rejection of Dr Maganty’s evidence was not irrational, as Dr Maganty’s evidence was unpersuasive as being overly based on assertion (an ipse dixit):

‘The Coroner ... did a good job of exploring and taking into account all the evidence, as we can see from the transcripts of the hearing as well as from her Reasons. The conclusion she reached was rational and securely based on the whole of her careful evidential enquiry.’ ^[16]

PRIVILEGE ATTACHING TO EXPERT REPORTS FOR INQUESTS

In an important 2020 decision of the Northern Ireland Court of Appeal, Ketcher, Re Application for Judicial Review,^[17] the status of an expert medical report obtained in relation to inquest proceedings in which a party had interested status was the subject of an internationally persuasive ruling. The Coroner had ordered such a report to be disclosed. The appellants were the mothers of two soldiers who had been found dead from hanging at Abercorn Barracks and were dissatisfied with a forensic psychiatrist’s report, which was commissioned by the Coroner. The question for the Court of Appeal was whether the coronial proceedings (which were Article 2 proceedings given the deaths had been in the context of state service) were concerned with litigation privilege. The Court applied the decision of Three Rivers DC v Bank of England (No. 6)^[18] (Three Rivers) in which it was held that for litigation privilege to apply the litigation must be adversarial, not investigative or inquisitorial.

The Court of Appeal identified that many aspects of coronial proceedings are plainly inquisitorial but that Article 2 of the European Convention on Human Rights imposes certain obligations where state agencies are involved:

‘The first is to ensure accountability for deaths occurring under state responsibility. Secondly, the investigation must be effective in the sense that it is capable of leading to a determination of whether there were systemic failures which may have failed to afford adequate protection for human life. Thirdly, the inquest should provide a means of providing a conclusion on the disputed factual issues in the particular case and identifying any state responsibility. Fourthly, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard their legitimate interests.

Although the obligation of the coroner is primarily directed to the public interest, the involvement of the next of kin is plainly to represent and protect their private interests ... It is, therefore, the nature of the obligation arising under Article 2 that gives rise to the adversarial setting between the family and the state body, also a properly interested person and also protecting its own interest. It is not, as the coroner and the learned trial judge stated, the choice of the parties.’^[19]

Reluctantly, the Court regarded itself as bound by the Three Rivers decision and held that litigation privilege did not apply to the report commissioned on behalf of the mothers, although it commented that ‘Properly interested persons should be free to explore reasonable aspects of investigation without being discouraged by the possibility that their expert reports may need to be disclosed to the coroner and the opposing party.’^[20]

The issue has not yet arisen for authoritative determination in Australia and it may well be that a different approach would be taken. In addition, it would often be open for a party to contend that a report of the kind in Smith had been commissioned for the obtaining of legal advice or in preparation for potential civil proceedings.

CODE OF CONDUCT

In Victoria, there is a specific Code of Conduct for expert witnesses who are engaged by the Coroners Court to provide a written expert opinion.^[21] It is similar to the ‘Harmonised Expert Witness Code of Conduct’, which has been adopted by the Federal Court of Australia^[22] and the Supreme Courts of the ACT, NSW, Tasmania and Victoria.

The Coroners Court of Victoria’s Information for Expert Witnesses stipulates that the expert ‘has an overriding duty to assist the court impartially on matters relevant to the area of expertise of the expert’ and requires that ‘[a] report of the expert must be that of the expert and no other person’. It also mandates that the expert identify ‘the reasons for the facts, matter and assumptions on which their opinion is based and summarise any literature or other materials utilised in support of their opinion’.^[23] In addition, the expert’s report must specify any person or entity external or independent of the expert who was consulted or provided any information, as well as a summary of the consultation or information. Where the expert’s report expresses an opinion, the opinion is required to:

• respond to a clearly defined question or questions;

• identify the factual premises upon which the opinion is based;

• be based on the specialised knowledge of the expert; and

• be clearly expressed.

To the extent that expert evidence is commissioned by a party to a coroner’s inquest, the obligations of proper disclosure of reports set out by Dixon J in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No. 8),^[24] and the obligation to refrain from any form of misleading or deceptive conduct (on the part of the expert or the lawyers), apply.

Similarly, the analysis of an expert’s responsibilities by McElwaine J in the Federal Court decision of New Aim Pty Ltd v Leung^[25] is applicable. McElwaine J was required to deal with the status of an expert report which involved a 16-page forensic report dated only the day after the witness was formally commissioned to write it. The witness was cross-examined about this anomaly and disclosed that she had sent earlier drafts of her report to the solicitors for comment. She had received comments during a video conference but when asked whether the solicitors suggested that she should make changes to her report, ‘she prevaricated and gave unsatisfactory and at times unresponsive answers’.^[26] She then gave evidence that a solicitor ‘put together’ the second version of her report and conceded that passages in her report bore a ‘remarkable similarity’ to paragraphs of another expert witness.^[27] Ultimately, she accepted that her report was a collaboration between her and the solicitors who commissioned her.

Justice McElwaine reviewed the authorities on the proper involvement of solicitors in the content of expert reports and noted that cl 3.2 of the Expert Evidence Practice Note advises that ‘A party or legal representative should be cautious not to have inappropriate communications when retaining or instructing an independent expert, or assisting an independent expert in the preparation of his or her evidence.’^[28] He found that this had not been complied with and observed that:

‘It may be perfectly appropriate, such as in cases where an expert is unfamiliar with the form and content requirements for an expert opinion report, for that document to be settled in an admissible form by someone else, but then in my opinion, only if that fact is disclosed in the report. In this case, that fact was not only withheld but was only ascertained during the course of cross-examination of Ms Chen, which in my opinion, was grossly unsatisfactory.’^[29]

Justice McElwaine also concluded that the conduct engaged in during the preparation and delivery of the expert report by the solicitors was misleading, as the commissioning letter gave the false impression that the expert was to prepare a report in relation to the two questions posed of her ‘when the author was plainly aware not only of what the answers would be, but also, as to the form of the opinion and the fact that its expression was the product of drafting’ by the solicitors.^[30] This led McElwaine J to conclude that what had occurred had gone ‘far beyond the permissible scope of involvement of lawyers who retain an independent expert to give evidence in a proceeding’^[31] and he was not satisfied that the opinions expressed by the expert truly represented her honest and independent opinions and that no matters of significance had been withheld by her.^[32] Importantly, he decided not just to reject the relevant paragraphs in the expert’s report but also all of the evidence she gave in court:

‘I have no confidence in the ability of Ms Chen to give credible, untainted and independent evidence and it would be quite wrong for me, having rejected the entirety of her written opinion evidence, to then proceed on the basis that I may, selectively, make findings of fact in accordance with her oral evidence. I cannot have confidence that her oral evidence was untainted by the factual material and the opinions expressed in her written report and the manner of its preparation.’^[33]

The decision constitutes a stern warning to solicitors who are minded to have substantive input into the content of expert reports.

CONCURRENT EVIDENCE BY EXPERT WITNESSES

It is increasingly common for expert evidence to be given by way of concurrent evidence (also known as ‘hot tub’ evidence) in order to reduce the overall time taken to hear and determine proceedings. In Victoria, in deciding whether or not to require expert witnesses to give evidence concurrently, Coronial Practice Note No. 1 of 2018 prescribes that a coroner is required to consider the nature and complexity of the issues to be determined, including:

‘(i) The extent to which expert evidence is in dispute and the number of expert;

(ii) Witnesses;

(iii) The particular discipline of expertise to which the evidence relates;

(iv) That concurrent evidence will assist in clarifying and understanding areas of difference in expert evidence;

(v) The views of persons with leave to appear involved in the coronial proceedings;

(vi) Whether concurrent evidence will assist in the speedy determination of the real issues with which the proceedings are concerned.’^[34]

The procedure for taking evidence from experts is prescribed by pt 11 of the Note as follows, unless the coroner otherwise orders:

‘(i) Each expert witness will take an oath or affirmation;

(ii) For the purpose of the transcript each witness will be properly identified;

(iii) The primary report of each expert witness is to be tendered;

(iv) The joint report of the expert witnesses is to be tendered.

Each expert may express their view on the issues in dispute within their area of expertise and must comply with their duties under the Expert Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. Counsel assisting or the Coroner will determine the manner of taking evidence from experts giving evidence concurrently.

Persons granted leave to appear at the inquest will be provided the opportunity to ask questions of the expert witnesses.

At the conclusion of the joint evidence the Coroner may allow each expert witness to give a brief final summary of their opinion taking into account the questioning that has taken place.’

It is variable whether coroners will order an expert conclave to take place prior to the concurrent evidence. It can be constructive both for the parties and the court for such a conclave to be convened because it tends to crystallise what issues are the subject of agreement and disagreement. Conclaves can be conducted virtually.

As in other contexts,^[35] concurrent evidence in coroners’ inquests has its promoters and detractors.^[36] It can be efficient in terms of time and expense but in practice this comes at the cost of exposing individuals’ reasoning processes. Additionally, some experts tend to adapt more readily than others to the ‘hot tub’ and may dominate or be deferred to when giving concurrent evidence.

CONCLUSION

In coroners’ inquests a liberal approach is routinely taken to the reception of expert opinion evidence. However, in contexts such as determination of causation, this means that the methodology underlying expert reports and the foundations of any assertions made need to be scrutinised by parties and coroners alike. With the evolution of more expert evidence being given by way of concurrent evidence, judicious selection of experts who are likely to conduct themselves effectively in the ‘hot tub’ and ensuring that all experts are made suitably accountable in that context are also important. Finally, to the extent that party-commissioned experts are permitted to give evidence at inquests, the guidelines requiring proper candour in respect of the commissioning and writing of reports must be complied with, including that the commissioning lawyers ought not to have substantive input into the content of expert reports that are prepared for coroners’ courts.

Ian Freckelton AO QC is a barrister at Castan Chambers, Melbourne and Professor, Law Faculty, University of Melbourne. EMAIL [e-mail].

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^[1] For the distinction between evidence of fact and evidence of opinion, see Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No. 5) (1996) 64 FCR 73, 75; Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of NSW and ACT [1998] FCA 480; (1998) 154 ALR 527, 531.

^[2] The Coroners Court in Victoria is explicitly described as an ‘inquisitorial court’, although the term is not defined: Coroners Court Act 2008 (Vic), s1(d).

^[3] Coroners Act 2009 (NSW), s58(1); Coroners Act 2003 (Qld), s37(1); Coroners Act 2003 (SA), s24; Coroners Act 1995 (Tas), s51; Coroners Act 2008 (Vic), s62; Coroners Act 1996 (WA), s41; Coroners Act 1997 (ACT), s47; Coroners Act 1993 (NT), s39.

^[4] For why such evidence is problematic, see HG v The Queen [1999] HCA 2; (1999) 197 CLR 414.

^[5] [2004] ACTSC 91.

^[6] Ibid, [15].

^[7] Lipovac v Hamilton Holdings Pty Ltd (unreported, ACT Supreme Court, 13 September 1996 per Higgins J), 102; see also A and B v Director of Family Services (1996) 20 Fam LR 549.

^[8] [2019] EWHC 581 (Admin) (Chidlow).

^[9] European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953).

^[10] See generally I Freckelton and S McGregor, ‘Coronial law and practice and human rights’, Journal of Law and Medicine, Vol. 21, 2014, 584.

^[11] Chidlow, above note 8, [52].

^[12] Ibid, [63].

^[13] [2020] EWHC 781 (Admin).

^[14] Ibid, [33].

^[15] Ibid, [67]–[68].

^[16] Ibid, [67]–[70].

^[17] [2020] NICA 31.

^[18] [2003] EWCA Civ 474; [2003] QB 1556; Three Rivers DC v Bank of England (No. 6) [2004] UKHL 48; [2005] 1 AC 610.

^[19] Ketcher, Re Application for Judicial Review [2020] NICA 31, [28]–[29].

^[20] Ibid, [32].

^[21] Coroners Court of Victoria, ‘Information for expert witnesses’ <https://www.coronerscourt.vic.gov.au/sites/default/files/2018-11/information%2Bfor%2Bexpert%2Bwitnesses.pdf>.

^[22] See Federal Court of Australia, Expert Evidence Practice Note (25 October 2016) (Practice Note) <https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/gpn-expt>.

^[23] Coroners Court of Victoria, above note 21, 1–2.

^[24] [2014] VSC 467; see also I Freckelton, ‘The award of wasted costs arising from defective expert evidence’, Journal of Judicial Administration, Vol. 25, No. 3, 2016, 113.

^[25] [2022] FCA 722 (Leung).

^[26] Ibid, [48].

^[27] Ibid, [48]–[49].

^[28] Practice Note, above note 22.

^[29] Leung, above note 25, [71].

^[30] Ibid, [74].

^[31] Ibid, [76].

^[32] Ibid, [77].

^[33] Ibid, [78].

^[34] Coronial Practice Note No.1 of 2018, pt 9.2.

^[35] See I Freckelton, Expert Evidence: Law, Practice, Procedure and Advocacy, 6th ed, Thomson Reuters, 2019; 7th ed forthcoming in 2023.

^[36] See for example K Dell’Oro, ‘Reflections on a recent experience with “hot tubbing” in the Coroners Court’ (20 March 2018) Meridian Lawyers <https://www.meridianlawyers.com.au/insights/reflections-recent-experience-hot-tubbing-coroners-court/>.