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Advocacy in the Local Court, Coroner’s Court and Mental Health Review Tribunal
What area(s) of law does this episode consider? | Advocacy for legal professionals in the Local Court, Coroner’s Court and the Mental Health Review Tribunal (MHRT) |
Why is this topic relevant? | Knowledge of courtroom etiquette specific to the forum you are appearing in is key for advocates who want to be as prepared as possible for a hearing. Understanding the purpose, function and role of a particular court or tribunal will inform the style of advocacy that a lawyer should adopt while in that forum, which is why this episode explains the intricacies of the Coroner’s Court and the Mental Health Review Tribunal. Mary Jerram AM has had a vast career in the law and presided on many benches, meaning her tips are uniquely insightful and offer a comprehensive perspective into the qualities magistrates and judicial officers are looking for in quality advocates. |
What legislation is considered in this episode? | Coroners Act 2009 (NSW) |
What cases are considered in this episode? | R v Thomas Sam; R v Manju Sam (No. 18) [2009] NSWSC 1003
R v Barling, Daniel; R v Lim, Chin; R v Edmondson, Scott; R v Ralph, Damian [2014] NSWLC 24
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What are the main points? |
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What are the practical takeaways? |
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Show notes & recommend reading from Mary Jerram AM | Leigh Sales AM, Any Ordinary Day (Penguin Books Australia, 2019) John Abernethy, Waller’s Coronial Law and Practice in New South Wales (LexisNexis, 4th ed, 2010) Inquest into the death of Roberto Laudisio Curti (PDF) ‘A guide to coronial services in NSW for families and friends of missing people’ |
David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. Our guest today Her Honour Mary Jeremy AM’s career in the law has found her sitting on the bench not only of the Local Court of New South Wales where she was deputy Chief Magistrate, but also the Coroner’s Court where she was State Coroner and the Mental Health Review Tribunal, meaning that Mary has presided over cases in both adversarial and inquisitorial courtrooms. How do we adapt our advocacy style to different forums? What makes good advocacy in a tribunal setting compared to a court? Today on Hearsay, Mary Jerram helps us to answer these questions. Mary, thank you so much for joining me today on Hearsay. |
Mary Jerram AM:
| You’re very welcome and I’m honoured to be here. Let me say that the only thing I do nowadays is the Mental Health Tribunal, and that’s part time, although I’m a deputy president, but I sit about once every two weeks. The rest are now behind me, sadly. |
DT: | And how do you like to spend your time outside of the Mental Health Review Tribunal in the rest of those two weeks? |
MJ: | It’s interesting how it takes up three days actually. You read for a day, sit for a day and then write up. And that takes another whole day, so. And then the rest is so I’m just being COVID lazy. |
DT: 2:00 | COVID lazy is COVID safe right? We have an excuse. Now Mary, tell us about your time on the local court? You sat not only at the Downing Centre but also on the Goulburn Country Circuit and from that experience, what are your three top tips if you like for advocates in the local court? |
MJ: | Well, they probably apply to every single court that I’ve appeared in or sat in, and it’s a bit glib, but I’m going to tell you the three Ps. One is at all times to be polite. |
DT: | Absolutely. |
MJ:
3:00 | I’ll come back to that. Second, utterly important, is to be prepared. And the third one is to be purposeful – by which I mean go straight to your point and don’t waste questions and don’t ask more than you need to. It’s a golden rule that you don’t ask questions if you’re not pretty sure of the answer you’re going to get. But can I go back to the polite one because I know that sounds very fire-side chat like, but it’s really important and it’s one of the big differences too. Well, actually politeness is important in every court, both to your colleagues and to the bench. But it is forgotten and I hate to say it, but sometimes it’s forgotten by the bench as well. There’s a famous remark that a very well known, no-longer-with-us Supreme Court judge made to one of his very senior barristers, he said, “I’m going to sleep now, Mr. so-and-so, and when I wake up I don’t want you to be here.” |
DT: | Shocking. |
MJ:
4:00 | Yeah, he got away with it, these days of course he’d probably have been referred to the Judicial Commission. Another example I remember is again it was a very senior barrister who was appearing in the Coroner’s Court in this case and he wasn’t counsel assisting, I think he was appearing for the police, and counsel assisting did rather have a habit of going on too long. And this silk said, “oh, for heaven’s sake”, and interrupted her and started to talk and say, why what she was saying was wrong and he went on for a few minutes until she said, “can I just finish?” and he said, “oh, we only wish you would.” |
DT: | Oh, goodness. |
MJ: | It was very rude and it had been a long day and I think she had trouble keeping her countenance, she did, but that’s no way to treat your colleagues. |
DT: | No, not at all. |
MJ: | Though as I said, it can come from the bench but it really is important to be aware that you’re not there to show that you’re smart. |
DT: | And polite not only to your colleagues and the bench, but also to the Court staff as well. I think that’s one that’s often forgotten. |
MJ:
5:00 | I’m glad you reminded me yes, because some counsel are not and while they may not do that in front of the bench, they do it when you go off for a break or for lunch and you always hear from the staff. And they’ll come in and say, “I don’t like that Mr. So-and-so, he was so rude and he told us what to do.” So you’ve got to be careful because staff are pretty important. |
DT: | Well, it seems like a minor thing, but I have seen in my own experience in list courts, if you have a matter to mention by consent and you’re particularly rude to the court officer collecting consent orders, you might find that your consent orders ended up at the bottom of the list and not at the top instead. |
MJ: | I’d hate to admit it, but that probably is what happens sometimes. |
DT: | Perhaps that’s just karma in action and not anyone shuffling the papers. |
MJ:
6:00 | Well who knows, who knows. And of course some advocates are very pushy, especially in a list court because you do have to often wait for quite a long time, but just be patient. Just be patient. Anyway I do recall when I was still a defence lawyer rather than on the bench, again, a barrister, he wasn’t that senior, but he was well known, pushing in after the rest of us had been waiting for sort of an hour and a half in the afternoon and saying, “look, I’ll only be a minute, I’ll just go through” because of course in one sense he was senior. It’s a difficult one because he did have precedence in a sense, but he was not only a minute, half an hour later he was still standing at the bar table talking. Now I think that’s just terribly rude. It was a Friday afternoon. It was getting close to 4:00 o’clock and he was just not going to be kept waiting. |
DT: | And it’s a tricky situation as well I think for a junior advocate to stand up to someone who wants to exercise that kind of, as you say, that precedence. |
MJ:
7:00
8:00
9:00
10:00
| Yeah, yes, but he just shouldn’t have done it, that’s all. That’s another example. But in the coroner’s court you didn’t get much rudeness because coronial as everyone I’m sure knows it’s inquisitorial rather than adversarial and you don’t win anything by being aggressive or adversarial. And I think that’s a fault of some people who aren’t used to the Coroner’s Court that they think they have to win points and ask every single question – well you don’t. That depends really whether you’re counsel assisting, I suppose everybody knows what we mean by that ’cause we all see enquiries on television even if you don’t appear in inquiries and Coroner’s Courts, but they’re not always senior barristers, in big matters they almost always are. Sometimes it’s a police sergeant, but the role of counsel assisting is not to put one point of view, but to sort of be the liaison between all those who are appearing, help the family, and what the coroner wants to find out. TIP: Before we go any further, let’s go over some of the key features of this unique inquisitorial court. Each state and territory has its own coroner’s court that’s governed by a corresponding piece of legislation, and in NSW the coroner’s court is established by the Coroners Act 2009 (NSW) (which replaced the earlier Coroners Act 1980 (NSW)). Section 3 of the Act sets out its objectives, which include ‘to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and date of their deaths and the manner and cause of their deaths.’ Another important part of the Coroner’s role though is to make recommendations following an inquest that improve public safety and prevent further deaths. The types of matters that come before the court involve ‘reportable deaths’, which according to s 6 of the Act, can include: (a) a violent or unnatural death; (b) a sudden death the cause of which is unknown; (c) a death under suspicious or unusual circumstances; or (d) a death after a health-related procedure, like surgery. Now our guest today, Mary Jerram AM, is the former State Deputy Coroner. The functions of the State Coroner are set out in s 10 of the Act and relevantly include overseeing and coordinating coronial services in the State, ensuring that all deaths and suspected deaths, under the coroner’s jurisdiction are properly investigated. Now Mary also just referred to ‘counsel assisting’, which is just the term used to describe a legal practitioner who is appointed to facilitate the inquiry; you’ve probably heard a similar term for Royal Commissions and the like. Their role includes developing investigation strategies, running hearings, writing reports and managing inquiry processes such as issuing arrest warrants. Now back to Mary! The other thing I think that advocates forget in Coroner’s is that the coroner actually, if they’re doing their job and they mostly are, will have read every single part of the brief. It’s so unlike criminal courts in that way where you just get a statement of facts at the beginning and so on, but the coroner’s role has been to set up alongside police and counsel assisting. The whole setup is not quite the right word, but to be familiar enough with the whole story that you know what you want to find out. And of course, new evidence can be handed up, but generally it’s not like defence, because there’s no defence, having to keep their secrets to themselves. That doesn’t help. |
DT: | And as a coroner, you’re responsible for really ordering the brief as well, aren’t you? |
MJ: | Yes. |
DT: | What is included in it? |
MJ: 11:00
| When you first get the papers and you start to look through it, that’s one of the reasons why it often takes so long for inquests to actually get off the ground. Then you have to say often to the police or it might be to the crown or whoever is counsel assisting, “look I’d like a statement from so and so,” or “can you please get me the figures on that.” So it’s very different in that way, it’s very interesting. One thing I always need to tell new advocates to the coroner’s court is that, unlike criminal courts, you have to seek leave. Even if you’re an ancient QC, it’s the coroner’s court, and when you go in you, I mean of course you’ll have it generally, but you do have to ask for leave as if you weren’t a lawyer, which some I think find a bit insulting, but it’s just a courtesy and it’s noticed if you don’t. |
DT: 12:00
| It’s almost a cultural convention of the court, isn’t it? And in the same way that if you appear in a list of a court that you’re not familiar with, and you understand the cultural conventions of that list, it makes you look like you know what you’re doing and I think your submissions are then better received by the bench. Not because there’s a sense that “Oh well, I’m offended that you don’t understand how things work in my court,” but just because you convey that sense of confidence, if you can observe those little things. |
MJ: | It’s like the law firms that, when I was still sitting on the local court, sometimes would send along a very junior person, maybe not even quite qualified, to do a mention. The problem with that was often that if it went beyond the absolute basics and you asked that young person, they were usually young, a question they’d say “oh, I don’t know, you’re Honour, I’ve just been sent along to mention.” Well, that’s hopeless, not fair of firms to do that, because barely ever anything which is just a mention. |
DT: 13:00
| I think a lot of our listeners will have horror stories about their first appearance being horribly under-instructed, probably in a return of subpoena list or something like that where they uttered those unenviable words, “I’m unable to assist the court in relation to that.” Returning to your other two Ps in the local court, there’s a question I had about being purposeful and prepared in the local court because I think a unique challenge in the local court is the workloads that the magistrates you’re appearing before have to deal with. The local court really is the engine room of the judicial system in New South Wales, an enormous number of matters, both criminal and civil, being dealt with by magistrates every day. Certainly civil advocates will have had the experience of having a civil trial interrupted briefly for a criminal matter, perhaps a sentencing or a plea in mitigation to be dealt with during the day because of the workload. Can you tell me one way that an advocate can be prepared and purposeful in a way that’s really respectful of the limited time and the limited capacity that Magistrate in the Local Court has when they’ve got so much work on their plate? |
MJ: 14:00
15:00 | I think that if you’re told by the advocate right at the start, what it is they’re seeking. That, for example, if you’re looking for a section 10, the old 556A, then it’s better to say so pretty early on. Because sometimes it’s ridiculous, and maybe it’s better for the bench to tell the advocate that. But don’t fluff around with old details too much and about which school they went to. I mean if it’s indirectly relevant, who wants to know what school people went to? Unless it was something to do with the school or whatever. So yes, I think again it’s both things that’s being prepared so that you’ve got proper instructions, you know what you’re seeking, you tell the bench so and you do it in the most concise way that you can. I know that sounds a bit vague, but I can’t describe it really in need better than that. |
DT:
| Well, I think I could imagine the difference between hearing these details, not knowing which ones are relevant or irrelevant and trying to work out at some point towards the end, what the suggested sentence is going to be, compared to being told, “this is what we’re seeking, these are the reasons why, here are three reasons why this is what I’ve just told you.” That structure that immediately tells you what is relevant, rather than trying to sift through that detail must make a huge difference. |
MJ:
16:00 | See if somebody has been charged, say, with their second high range drink driving, with or without the embellishments like unregistered and so on, it’s pointless to be seeking a section 10. Quite obviously not, I mean, if you got that, I would think the police would immediately appeal it. It’s usually a police case. So no point pushing for what’s impossible. On the other hand, you push for the absolute most you can if you’re a defence lawyer, that is. TIP: And by the way, for more tips on sentencing considerations, why not listen to Episode 19 of Hearsay with Michael Vo and Matthew McAuliffe. |
DT: | Do you find that was a problem during your time on the local court that defence counsel in police litigation were perhaps a little too optimistic, or perhaps their clients were a little too optimistic about the prospects of a section 10? |
MJ:
| I think that the inexperienced ones sometimes were. On the whole, not. On the whole the ones who did a lot of that sort of work knew to get to the point. And I can’t tell you how your heart would lift in a busy list court when you saw some of the ones you knew were good and efficient come in the door. And I suppose the opposite was occasionally true too. |
DT: 17:00 | Well, I mean, reputation as an advocate is such an important thing, isn’t it? Both positive and negative. You are of course going to be impartial in your determination of any case, but you will have a natural cynicism for what you’re being told by an advocate who you know has not always been forthright or direct with the court in the past. |
MJ: | Or who has come in late that day and kept you waiting. That’s not a good one either. |
DT: | We were talking about the role of counsel assisting, and of course, that’s a critically important role for an advocate in the coroner’s court, but other advocates appear in the coroner’s court as well, appearing for other parties interested in the matter. Is there a standing issue there? Can anyone appear? What is the process there, and how do you establish whether you should be appearing there at all? |
MJ: 18:00
19:00
20:00
21:00 | It’s a matter basically of common sense, but, and it didn’t very often happen that counsel or any advocate would be turned away, but if there was a very peripheral issue that the coroner would say, “well, what’s the issue that you want to make on behalf of Mr. So and so?” Or “where do you see the interest lying?” Now clearly if it’s for somebody who, of course, it’s never called a suspect in the coroner’s court at most they’re called a person of interest, but if they run the risk and it was, it’s usually pretty obvious, of having adverse comments made about them once the matter is heard, then that’s sufficient interest. And it doesn’t hurt to say that if you were the advocate, if you said something like, “look, my client fears that he’s going to be criticised and he wants to be heard on that matter.” That’s probably how you deal with that. TIP: Let’s talk about the role of interested parties. Now in the NSW Coroner’s Court interested parties who wish to participate in the proceedings have to first register their interest by writing to the court with the following information:
In a 2014 ‘guide to coronial services in NSW for families and friends of missing people’, an interested party is defined as: ‘A person or organisation that the Coroner determines to have direct involvement or sufficient interest in the matter being investigated or is likely to be impacted by the coronial outcome.’ That specifically includes ‘the family of a missing person’ or the deceased. Other interested parties might include friends of the missing person, or other professionals or agencies involved with the missing person prior to their disappearance or death. Now importantly, the Coroner has a discretion to determine whether they’re satisfied an interested party has a genuine interest in the proceedings. If that interest is confirmed, then they’ll be kept informed at key stages of the investigation, but interested parties are not necessarily entitled to participate in the inquest and ask questions of witnesses, unless the interested party has applied for, and been granted, leave by the Coroner to do so. Interested parties, like family members, can also nominate themselves as a witness before the court. We’ll leave a link to that 2014 detailed coronial services guide in the show notes for this episode as well. But it is still the right of the coroner to decide whether that person should be represented or not. Most families aren’t, you know. Primarily because Legal Aid can’t finance them, and it’s as we all know, law is an expensive business, so it’s only in the very big complex inquests that you usually saw families represented. For example the Lindt inquest, the cafe. I didn’t do that, my successor, Michael Barnes, did that. Mind you, one of the victims in that matter was a lawyer herself and came from a legal family. That was a very sad case. It was just after I’d gone, poor Michael Barnes had it, it went for a very, very long time. |
DT: | I can imagine. Now you were saying before that counsel assisting is really that sort of liaison between the victim’s family, the police, the coroner and plays that role of connecting the parties in that inquisitorial process. What is the victim’s family’s counsel seeking to achieve if they are appearing? If the victim’s family is represented? |
MJ: 22:00
23:00
24:00
25:00
| It’s an interesting question because I don’t agree with other colleagues of mine, and when I was preparing for this I read a transcript of a seminar that the Bar Association held with people that I know and worked with and I’m very fond of and admiring of. But one of them said in answer to that sort of question that she thought most families didn’t want to blame anyone but wanted rather just to understand what had happened and have full knowledge. Now that wasn’t always my experience. I think and I understand it, but I think that it’s very strong with the families of people who’ve died, especially where there are suspicions, or say where there’s a possibility of negligence medically or whatever, that they do want to blame. It sounds silly to say you can’t blame them. I think many people get over that, but that is primarily what people feel. And it’s also a reason why it’s not always such a bad thing that it might take a year or two to get to an inquest after a death, because pain is pretty raw at the beginning and while an inquest might rub the wound again, and I’m never going to say the word closure, ’cause I don’t think you get closure from a horrible, unexpected death trauma, but I think that you have to be aware of that if you’re appearing for the family, and not let them think that too much can be achieved. For example, let’s say it’s a medical negligence matter, or there’s a fear that it is. The Civil Liability Act means that doctors or anybody else can make, in an inquisitorial matter like an inquest, an apology without that being held against them. And that helps people a bit, not always and it depends what the story has been. There was a matter I did, an inquest, into where a poor little baby had been allowed to develop the most terrible, terrible eczema. It was like lots of small children get, but the parents were homoeopaths and they didn’t believe in traditional medicine. And they let the eczema get worse and worse and worse until, and they even took her overseas, not for treatment, but for a family wedding I think. So, at the time she finally was taken to hospital, I think she weighed about the same as a normal three months old and she was nine months old and when the specialist doctors from the children’s hospital gave evidence, they weren’t to blame at all. In fact, most of them wept and they were very senior paediatricians and they really did weep a lot ’cause they were so appalled. But there was a GP who’d seen them just before they went overseas and he was blaming himself for not having more firmly told them not to go. He said he didn’t think it was wise, but he hadn’t pushed that. And in that case there wasn’t really any other family waiting to be soothed. But it was important what that doctor said, “I think I made a mistake. I should have been firmer about it” and so on. I don’t know whether he had the power to order the child to hospital. TIP: The case Mary has just referred there was the coronial inquest in relation to the death of Gloria Thomas, who passed away in May 2002. The inquest was held in 2007 at the Glebe Coroner’s Court, but it was terminated shortly thereafter when Mary, as the Coroner, found that there was a reasonable prospect the evidence presented to the inquiry could convince a jury to convict ‘a known person or persons of a serious crime.’ In 2009 the Supreme Court in R v Thomas Sam; R v Manju Sam (No. 18) [2009] NSWSC 1003 convicted both parents of manslaughter for their involvement in their daughter’s death due to criminal negligence. |
DT: 26:00 | I want to ask you about the skills of an advocate who’s appearing in the coroner’s court, whether as counsel, assisting, or on behalf of the victim’s family, or even on behalf of a person of interest. We’ve described how the court is different both in terms of its purpose and also in terms of the way the case is prepared for the court and the coroner’s own role in preparing the brief. What is a useful skill for an advocate in the coroner’s court that perhaps isn’t a useful skill, or isn’t as useful in an adversarial court? And I suppose a follow up to that question, do you remember an advocate from your time as a state coroner who was a really great exemplar of that skill? |
MJ:
27:00 | I do, I remember several of them actually, not all but several. They weren’t all senior, but mostly they were, and in fact two that I remember particularly have gone on, one to the Supreme Court and one to the District Court, I hope that was recognition of their qualities. One of them I remember questioning the girlfriend of a person of interest who was into spirituality. And she was interesting, she started to say “I get auras and I can see an aura right round you. You’re distressing me because of your aura.” And he just stood there very politely, not sarcastically smiling and let her have a little rave until I said, “Thank you, we understand that now, Mr. So and so would you proceed.” And he did without, I mean, it was a bit…’cause she was really attacking him in her way. I worked with some really good people in those times and it was great because we had a very good team and so a lot of really good advocates wanted to do coronial work. It’s always been interesting to people, of course, ’cause it’s about all of the basics of society, isn’t it? |
DT: 28:00 | It sounds like the skill that was being demonstrated there, in adversarial court you might have a very tight hold on the way your cross examination is conducted. For example, you might really want to keep it on the rails that you’ve planned and not let it diverge, and if someone were to make an outburst that was irrelevant to the question you might shut that down very quickly. It sounds like in the coroner’s court, because the rules of evidence are different or for the most part absent, I suppose, and the purpose of the hearing and the findings made by the court are different, you take a different approach to examining witnesses. You’re not as tightly reined, is that fair to say? |
MJ: 29:00
30:00 | Yes, I think it is and don’t forget too that the ordinary rules of evidence don’t apply. There has to be procedural fairness, but they just simply aren’t part of the Coroner’s court. So that generally if people are objecting to each other’s questions, doesn’t mean they can’t, especially if it’s outside the realms of what you’re looking at. But it’s not always useful to say “you know that’s hurting my client” or “no, I object.” That’s something I think that some people forget – that the rules don’t apply. The one thing that I wanted to raise from Coroner’s: the self-incriminatory rule. That certainly applies, and the coroner can either order the person to keep going, or give them a certificate to say that it won’t further be used against them, or sometimes you just have to let people stand down if you’re convinced that it would incriminate them, and you can’t hear any further. It’s quite frustrating sometimes because we all understand you’re not obliged to incriminate yourself, but sometimes you’re almost getting a breakthrough, and then the witness will say “oh look I’ve got a letter from the doctor that says I can’t remember anything” or whatever. And experts that was the other thing I wanted to talk about, in coroner’s, a lot of experts are very helpful if you get, if say, you’re representing a family, then it’s useful to have the expert talk to the family before the inquest or even that morning because they’re there, as they sound, for expertise not to approve any particular point, but to explain. And I think that helps families sometimes. |
DT: | Does it help to hear what that expert is likely to say beforehand privately for the family, especially if it’s going to be traumatic? |
MJ: | Yes, I think it does. For the family, yes I mean, the court doesn’t hear it. But yes, for the family, definitely. |
DT: 31:00 | Just returning to your point about objections, I’m thinking about that point in terms of my own experience in the civil jurisdiction and public examinations under the Corporations Act for example, where you have a similar process, there are no ordinary rules of evidence, there are some limitations on the questions that you can ask based on what constitute the examinable affairs of a company or not, but generally they’re pretty wide ranging. I suppose in any forum you want to limit your objections to only the most important ones, don’t you, but do you find that advocates who are appearing for a person of interest, for example, might make more objections than are really necessary because they want to be seen to be adding some value defending their client in some way, even though that’s not really an apt description of what they’re there to do? |
MJ:
32:00 | I think the short answer to that is yes, you do find that. Again, with the less experienced. But on the other hand, some people are facing the possibility it’s not very high, but the coroner can’t convict of course, I’m sure everyone knows that, but you can refer someone if the evidence is sufficient, onto the DPP. And out of that can come serious criminal charges. That baby I described, for example, the parents did end up being referred and going to prison because it was such severe neglect so you know, if your client is facing that, then I think you’re far more obliged to go in hard. |
DT: | Do you find, recognising that it is difficult to object to a question in the coroner’s court because of the rules of evidence being different, but is there an example of a sort of question where counsel representing a person of interest might be justified in making an objection? |
MJ: 33:00
34:00
35:00 | Yes, police, for example, because some of the matters that come, sadly, before the court and to do with police behaviour. Look often I saw the better side of police indeed at the coroners, but sometimes for example, do you recall the matter of the Brazilian boy who ended up being tasered and died with a whole lot of, a pack really of, police upon him. The counsel for the police in that matter was pretty stringent right through, and he probably was right to be because they were ripe for some serious criticism and if not disciplinary action, or worse. TIP: Some of our listeners might remember the case of Roberto Laudisio Curti, a 21-year-old Brazilian student in Sydney who died in March 2012. The coronial inquest into his death was mandatory under s 23 of the Coroners Act 2009 (NSW) because he died during the course of police operations. Mr Curti was out with friends on the night of March 17th 2012 and he ingested a small quantity of LSD. CCTV cameras shows that the drug had a strong effect on Mr Curti and caused him to act unpredictably while he was in a state of paranoia. He removed his clothes and was running around the city when he entered a store and climbed over the counter, causing someone to report to police that she was witnessing a robbery. Soon, 11 police officers were chasing Mr Curti. Those officers restrained Mr Curti by kneeling on him and holding down his limbs while he was tasered and sprayed with capsicum spray. The incident was recorded by one of the officer’s body cameras and by the time the ambulance arrived, Mr Curti was not breathing and he was soon pronounced dead. The autopsy that was conducted later did not reveal a direct cause of death. Now Mr Curti’s story, you might recall, attracted immense outcry both on a domestic and international level as the public demonstrated their outrage at the police behaviour during the distressing incident that led to his death. In Mary’s findings she noted that Mr Curti, although he had taken an illicit drug, wasn’t guilty of any serious offence and didn’t present a threat to anyone. She went on to say that the police officers involved had been ‘reckless, careless, dangerous, and excessively forceful..’ Mary went on to describe their behaviour as ‘an ungoverned pack mentality… with no idea… what threat or crime was supposedly to be averted.’ Mary concluded by recommending that 5 of the police officers involved should face disciplinary action. In R v Barling; R v Lim; R v Edmondson; R v Ralph [2014] NSWLC 24, 4 of those 5 officers were charged with either common assault or assault occasioning actual bodily harm, and just 2 of the officers were found guilty. We’ll leave a link to the inquest findings in the show notes for this episode. So I think in those cases, yes, there is more justification for objecting but still has to be tempered with the three Ps I think. |
DT:
36:00 | And how do you, as a coroner, rule on those objections? Because I suppose there’s not really a question or there are very few questions where you would say, “well, you can’t ask about that topic” or “you can’t ask a question of that kind,” but how do you resolve those objections? |
MJ: | As far as I recall, you can. You can say “look, I don’t need to know about that Miss so and so or Mr. So-and-so. I do remember once and he was actually a good advocate, not for the police in this case, but he was going on and on and on in a submission and I said, “Mr So and so, I really have heard enough,” and he said, “but it’s for my client’s sake.” I can’t remember who he was representing and I said “yes, but it’s not helping your client to tell me far more when I’ve got the picture, and I’ve heard enough.” And I didn’t mean to be rude to him, but it really wasn’t any point going on and on and he felt he must labour every point. |
DT: 37:00 | Is it sometimes that advocates do that, I suppose literally for their client’s benefit in the sense that there’s a feeling that one needs to perform the act of being a vigorous advocate for the client, even if that isn’t particularly helpful and you know it to be unhelpful to the court? |
MJ: | No, I think that’s quite right that you know this is what you’re paying me for, but it just isn’t a great idea in coroner’s. Of course, if you’re representing somebody who, as I said, is likely to be adversely commented upon, then you’ve got to do it a bit more strongly, I suppose. |
DT: | There’s always that balancing act, isn’t there? That you might have to make a submission or an objection that the judge doesn’t particularly want to hear, but you might have to make it all the same. |
MJ: | Quite. |
DT:
38:00 | Mary, you’ve previously described being a coroner as like being a detective and a medical and a lawyer all at once, but especially the medical aspect of that task, I imagine it’s quite difficult. I mean, as lawyers where no strangers to jargon, we’re no strangers to unfamiliar language, we’re no strangers to dead languages, but how do you as a coroner adapt to the language of the medical profession? How do you prepare yourself, I suppose, to engage with the content that medical experts are presenting to the court, and how does an advocate in the coroner’s court do that? |
MJ:
39:00
40:00 | Well, from the corners point of view, when I first went to the coroner’s court I don’t think I’d ever seen a dead body, and I made a point in the first few weeks of going down to the morgue which was in the same building and asking the pathologists who were working away to explain to me. I have to say that there were moments when it was as difficult as anything. I think it was important and it meant that they realised you really were interested and I was relatively humble about it. I am a doctor’s daughter, but that didn’t mean that I saw horrible surgery all the time. I did read a lot and I use that dictionary all the time and relatively quickly, because like everything, they’d be using similar terms over and over and over in their autopsy reports or whatever. And so you begin to know what they meant when they talked about causes of death, which I wouldn’t have known the meaning of before I started to do that work. We did sometimes have some clashes because the coroner has the right to decide whether there’s to be an autopsy or not, and some of the pathologists thought that it was absolute cheek for lawyers to be telling them, but in fact the coroner owns the body. TIP: Section 56(1) of the Coroners Act 2009 (Cth) says that ‘a coroner has a right to take possession of and retain the remains of a deceased person whenever the coroner has jurisdiction to hold or is holding an inquest concerning the death or suspected death of the person.’ |
DT: | Right. |
MJ:
41:00 | It actually does own the body, that’s what the Act says, and they can’t, unless you sign on it, they can’t do an autopsy, and then they’d come round and argue about it. We had a meeting every day with whichever coroner was on and whichever pathologist and sometimes you argued it out there. For example, anything to do with the brain seriously upsets families and they never want the brain examined and taken out, it also puts off funerals and so on, but somehow there’s still something sacred to a lot of people I think about them and that’s quite apart from culturally because it’s absolute anathema to most Aboriginal people, Maori and Muslim and Jewish people. And so it had to be, if it was a probable murder, then that might be OK. The coroner might agree to do something that was against the wishes of the family, but you had to be extremely careful about it. |
DT:
| I suppose that’s one of the reasons why the decision is really in the hands of the coroner rather than in the hands of the pathologist because you’ve got these countervailing considerations, you’ve got the medical consideration and the investigative merits of doing the autopsy, but on the other hand you have the family’s wishes, you have community expectations, you have all these other expectations that you have to weigh against that. I want to turn now to your work on the Mental Health Review Tribunal, another forum where your acquired knowledge of medicine, I suppose, has been very useful, no doubt. |
MJ: | It’s interesting that one, it’s mostly about understanding the terms for drugs. I mean medical drugs. |
DT: 42:00 | Right. Tell me a little bit about the Mental Health Review Tribunal. Some of our listeners might be more familiar with it than others, what is its purpose? Because it has both a forensic and a civil jurisdiction, doesn’t it? TIP: Now before Mary jumps into her explanation of the Mental Health Review Tribunal, let’s cover off the basics. The Mental Health Review Tribunal is a specialist, quasi-judicial body that’s regulated by Chapter 6 of the Mental Health Act 2007 (NSW). Like the Coroner’s Court, Section 1 of Schedule 5 of the Act requires the President or Deputy President of the Tribunal to be a person with extensive judicial experience who has held office either in the Supreme Court, District Court, Federal Court or the High Court. Like many Tribunals, meetings of the Tribunal are to be conducted with as little formality and technicality as possible, and the Tribunal isn’t bound by the rules of evidence. Now let’s hear from Mary how the Tribunal actually functions, and the difference between its civil and forensic jurisdictions. |
MJ: 43:00
44:00
45:00
46:00
47:00
| Yes, and I only sit in the forensic because for forensic matters, the presiding member has to be a lawyer/has to be ex-judicial and I do those, I don’t do, I have done a few of them, but I don’t normally do the civil ones. Civil is when people are out in the community and haven’t committed any crime, they must have been scheduled because they’re mentally ill. Forensic is when people have been found, almost always, not guilty on the grounds of mental illness, although they’ve just changed that term but that’s what it is, I think it’s now called ‘proved but not convicted’, anyway, and then are ordered to a hospital. So they’re then forensic patients. ’cause they’ve got a mental illness which has put them outside the likelihood of being tried ’cause they’re not up to it. By law, they have to be seen every six months if they’re locked up. I mean in the bad old days, and they’re a long time ago now I think really, there were some dreadful stories about ‘asylums’ as they were then called and about people being, well, you must have heard, some of them being chained to the walls and of course that’s long, long ago, but I imagine that that’s how it started that the tribunal was established partly to make sure that people were being properly treated. Nowadays, it’s not only that, although frankly, very rarely any doubt, but that people are being properly treated but maybe they’re getting ready to move on, either to a lower security hospital or even to be released. Now that doesn’t happen every day and it’s a big deal because I have to say that many of them have committed horrendous crimes. You have to have a fairly strong stomach for some of it, a lot of murders with dreadful details. At least we don’t have to see photos or anything and we don’t make a big deal of that, but you need to know what the original offence was. And there are still some people who’ve been in hospital for say, there’s someone I saw not long ago, 21 years. And not made much progress because he’s got the sort of mental illness that doesn’t respond to the antipsychotic medicines. Some of those these days are brilliant, there’s one called clozapine, it’s not a total wonder but for a huge number of patients it gets them much weller quite quickly. So we ask about that. We get a lot of paperwork beforehand. And then I sit with, it’s always a psychiatrist and a community member, and the community member usually has been or is a social worker or a psychologist. It’s much more informal than the other courts. Nobody stands up, but we all sit around a big table and the patient comes in with the treating team, which includes the psychiatrist of course, and really it’s then up to the Tribunal and the presiding member to ask questions to set everybody going. Not many private advocates. Mostly people who are represented by the mental health advocacy service of Legal Aid. There are a couple of them who are excellent, but in general, they’re not as essential as they are in coronial or general courts because the psychiatrists have already presented to you and the social workers and everybody else, their reports, and we’ve read them. and we need to know from them anything that has been missed out, or anything that needs further explaining. Of course, for the last year, it’s all been done on screen, which is highly, highly unhappy. You don’t get to talk properly to the patients. Last few months everyone was wearing masks so you can’t hear them half the time, but at the same time they don’t want us in prisons. And I’m not saying that I want to go, but they’re almost all in, if it’s higher security those are the hospitals at Long Bay and the forensic hospital, which is also at Long Bay but separate, Morisset, well then there are medium secure and they can’t be moved on from high to medium without a tribunal order. So you hear the arguments as to why an occasion needed tribunal refusal, even though the team wants someone to go, but not very often. And you always hear from the patient too. |
DT: 48:00
| You were just saying that the tribunal is considerably less formal than either the local court or the Coroner’s Court, and that’s not an uncommon feature of a tribunal environment whether we’re talking about NCAT or the administrative appeals tribunal, how important is it to match your style of advocacy to the level of formality of the forum? If you go to a tribunal and behave the way you would in the Supreme Court, what does that do to your persuasiveness in that forum to not have adapted to that informality? |
MJ:
49:00
| Well, I always rather like it when people are a bit formal, the few times that there is a private advocate. But the really good ones, and that includes the ones for the good ones from Legal Aid, if there’s a legal point to be argued, we’ll usually provide written submissions beforehand, and so they come to you with all electronic files. And I think that is really good work because it’s a full day and you don’t have a heck of a lot of time. It’s not quite like a list court, but you might see nine people and they each get about 40 minutes, so you can imagine. I think the main thing is to let the Tribunal itself lead the way by saying “now what questions do you want to ask?” But if there is a legal representative, then we should always ask them first if they want to say anything to begin with. But as I say, if they’re formal, as long as they don’t go on too long. The one thing that’s not good is those who haven’t taken proper instructions and then they ask for tribunal time to go and talk to their client outside the hearing room. Well we just haven’t got that sort of time. |
DT:
50:00
51:00 | Now, one feature of the Mental Health Review Tribunal and you mentioned this as well, is that the panel is interdisciplinary, there’s a lawyer in a forensic matter, a judicial member or former judicial member, and there’s a psychiatrist, and there’s a community member who’s usually also from a medic or health background. Having a panel that’s comprised two thirds of which from non-legal backgrounds, how does that affect the style of an advocate in the tribunal? And again, that’s not necessarily unique to the Mental Health Review Tribunal. There are other tribunals in New South Wales and the Commonwealth where community members sit on the panel. TIP: Now while it’s outside the scope of this episode to discuss all the different tips for appearing for all the different types of judicial forums here in NSW and Australia more broadly, for general advocacy tips don’t forget to listen to Episode 1 of Hearsay, ‘The View from the Bench – Tips for Aspiring Advocates’ with the Hon Justice Lucy McCallum JA if you haven’t already. In that episode, her Honour shares her knowledge and insights with us to provide guidance for aspiring advocates both at first instance and in appellate advocacy. How does that affect the style of an advocate? How do they have to shift their style to make submissions to non-lawyers and what skills set that apart from the typical courtroom setting? |
MJ:
52:00 | It’s an interesting question that one. I’m not sure whether the advocates do change their style much according to that, because most of their questions will be going to the treating team. It’ll be the psychiatrist they’re asking questions of, or might be the social worker if somebody, for example if what’s being discussed is being discharged into some sort of community housing, then the question might go to the social worker on the team. I don’t mean on the tribunal, I mean on the treating team, quite often you can have about eight people come with the patient. Occupational therapist, a couple of psychiatrists, the ward nurse. And if nobody else has asked, then I suppose one of the jobs of the presiding member is to mop up any questions that might still be important. By the way, in civil they do have a lawyer too, but doesn’t have to be ex-judicial, but there’s always a lawyer. |
DT:
| In that setting, where most of your questions are directed at the treating team, for advocates who are less experienced with the forum, do you find that sometimes they treat the trading team a little bit like witnesses and sort of bully them a little bit with the questions when it should really be a much more collaborative approach? |
MJ:
| Yes, but they don’t do it in front of us more than once. I can think of a very clear example when it was a very senior psychiatrist who got really cross, and that’s not what we want to do to upset them. I mean you can not agree with them, but you should be asking questions, not arguing, I mean, they’re specialist medical people, not lawyers, and you don’t necessarily know, or the advocates don’t, a heck of a lot about psychiatry. |
DT: 53:00 | Well, that’s right, in any forum it’s probably not a good idea to argue with an expert about their area of expertise or argue with the witness generally, I don’t think that’s really the job. |
MJ: | No exactly. |
DT:
| At the top of the episode we talked about your three Ps: to be polite, prepared and purposeful, and that’s a universally applicable set of guidelines, but how do you change the way you’re prepared and purposeful, I suppose especially purposeful, when appearing in the Mental Health Review Tribunal. What’s your goal when you’re appearing there? What should you do in your submissions to be really clear in that 40 minutes that you have or so to clearly convey to the tribunal, both its legal and non-legal members, what it is that you want for your client? |
MJ: 54:00
| Well, very often you don’t want anything different from your client. You’re really there just to represent them if they’ve got anything that comes up and they want to protest, or sometimes they’ll come and say, the advocate I mean, and say, “look, I can’t get instructions from them,” which is understandable because some of them are very ill still, but it’s best for the advocate to be asked at the beginning, “is there anything in particular that you want to ask now” or that, for example if there’s an application to go to a medium secure or to have conditional release considered speak to it now, especially if the team is not agreeing. There’s often not a great role for advocates in the tribunal because many patients will say, “well, I don’t like it here and I’d like to get out, but I know I’ve got to stay here a bit longer.” So there’s not always a lot of argument about it, really. |
DT: 55:00 | Yes, you can’t always give effect to those instructions, I suppose. And as you said, they probably might not take the form of instructions, they might take the form of an acknowledgement that there’s nothing much to be done. |
MJ: | Or very occasionally, a patient just says “I don’t want to come to the tribunal,” and so then it’s useful to have their lawyer there ’cause you can’t really go ahead without them. |
DT: | Yes, I see. |
MJ: | It wouldn’t be fair. If we’re at the hospital and that happens, then we get the psychiatrist to go around and see the patient in their own room if it’s safe and there’s sometimes an if. But if it’s just saying “no, I’ve been before the wretched Tribunal so many times I don’t want to go again,” we can’t really proceed unless they’re represented at least by somebody with some instructions, and so then they say, “look, he knows he’s got to stay there, he’s OK” or whatever, “but he just doesn’t want to come.” |
DT: 56:00 | Yes, I see. Recognising that there’s sometimes a bit of a limited role for the advocate representing the patient in the tribunal, do you have a story about a particularly effective advocate that you’ve seen in the Mental Health Review Tribunal? |
MJ:
57:00 | The two that I immediately think of are the ones who’ve provided more than once written submissions when there’s a legal point to be argued. One was for example, about the power of the Tribunal to transfer a particular type of patient outside. It was a complex matter to do with whether she was a civil or a forensic. And this particular put a really good strong legal argument in about a page, no more, and not tightly typed, so he directed you to the law and the sections, and we were all able to read that beforehand. That’s good advocacy. The other one I’m thinking of did the same. So often they don’t have to say a huge deal, and it’s very seldom that we go on arguing matters for a long time. They still take about 30 to 40 minutes, but it’s more information gathering than anything. |
DT: | It sounds like one of the important roles of the advocate in representing the patient is to identify and analyse some of those legal issues before the hearing starts because you will have plenty of paperwork, as you said, and plenty of advance notice of the content of the hearing, but not so much time during the course of the hearing to really explore those issues. It’s probably the role of the patient’s advocate to explore those issues from a legal perspective as much as possible beforehand. |
MJ: | I’ll tell you one thing that does come up occasionally, not very often, but administering, ECT. Which often patients don’t want, which you can understand. And there’s a role for the advocate to argue on their behalf, and of course then for the psychiatrist to say why they think that is the last resort, ’cause it’s difficult stuff. |
DT: | Not something that’s done lightly, I can imagine. |
MJ: 58:00 | No, I was amazed when I started this work that it was even still done. I thought that had gone by the board, but I’m assured that it’s still considered in a few cases an effective treatment. But I’ve also seen files with patients who’ve had it and it didn’t achieve anything, so they stopped it. |
DT: | We’ve spoken about three forums today, we’ve spoken about the local court, the coroner’s court and the Mental Health Review Tribunal and some of your tips for each of those forums and how an advocate style shifts and changes in those different forums, to finish up for today, do you have one tip for our listeners that’s universal in any court, tribunal, or other forum that will serve our listeners well no matter where they’re appearing? |
MJ: 59:00 | Be prepared. Absolutely know what the case is and have it absolutely at your fingertips before you go into court. |
DT: | Well said, that’s an excellent tip no matter where you’re appearing. Mary, thanks so much for joining me today on Hearsay. |
MJ: | You’re welcome, thank you, David. |
DT:
1:00:00 | As always, you’ve been listening to Hearsay The Legal Podcast. I’d like to thank my guests today Mary Jerram AM for coming on the show. Now if you listened to this episode because of your interest in the criminal law and its intersection with mental health, we have just the right episode for you – my interview with Thomas Spohr on mental health in criminal law, covering everything from defences to sentencing. Or, if you’re more interested in advocacy skills, our interview with the Hon Justice Lucy McCallum is a good option. But, if you’ve already listened to that, try our interview with barrister Talitha Fishburn on digital advocacy, a fast-growing area of advocacy. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. As you know, whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim either a substantive law point or a professional skills point for both the substantive law on the coronial jurisdiction and the professional content on advocacy in that forum. More information on claiming and tracking your points on the Hearsay platform can be found on our website. Hearsay The Legal Podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more on our website, and if you’re a subscriber we’ll let you know by email whenever we release a new episode. And, by the way, our free trial episodes are now available on Apple Podcasts and Spotify, so if you like us give a rating on your preferred platform and maybe tell a friend to listen to an episode too. Thanks for listening and we’ll see you next time. |
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