Gaeilge

Title:	Ramseyer -v- Mahon
Neutral Citation:	[2005] IESC 82
Supreme Court Record Number:	224/04
High Court Record Number:	2003 43 JR
Date of Delivery:	12/06/2005
Court:	Supreme Court
Composition of Court:	Murray C.J., Denham J & Fennelly J.
Judgment by:	Fennelly J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Concurring Fennelly J. Link Murray C.J.

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Murray C.J.
Denham J.
Fennelly J.
BETWEEN
JUDGMENT delivered by MR Justice Fennelly on the 6th day of December 2005.

1. The Respondent (hereinafter “the Coroner”) is the Acting Coroner for County Offaly. The Appellant is the sister of James Goonan, deceased, who died on 11th March 2002. She appears in these proceedings as the next of kin of the deceased and her right, as such, to participate in the inquest to be held by the Coroner is not disputed. She claims, however, that the Coroner, by denying her access to certain documents, proposes to conduct the inquest in a manner unfair to her interests.

2. The present appeal is taken against the judgment of Murphy J, in who dismissed the Appellant’s application for Judicial Review of certain decisions of the Coroner.

3. The nature of the dispute between the Appellant and the Coroner emerges from correspondence, from 21st May 2002 to 16th January 2003, between the latter and the solicitors for the former.

4. To begin with, the solicitors asked for the post-mortem report, but the Coroner had not yet decided to hold an inquest and had not received the post-mortem report. It was until 8th July 2002, that the Coroner wrote stating that he had decided to hold an inquest. The Appellant’s solicitors wrote on 11th July requesting “copies of all information” and a copy of the post-mortem report. The Coroner replied that the information he had received was “a report from An Garda Síochána that the deceased met his death from causes other than natural causes.” He said that the post-mortem report was presented to the Coroner as a draft deposition for the inquest and that “it is not normally released to anyone until it has been given in evidence and signed at the Inquest.”

5. The solicitors on 17th July asked for “copies of the Garda Síochána report and the Post Mortem report.” The Coroner replied on 18th July that he “receives,” presumably meaning that he normally receives, a verbal report from a Garda, usually at the scene of the accident, but that, in addition “the Garda issues a brief report to the Coroner in the form of a form C.71” and that he did not have “a garda report as such.” In the same letter, the Coroner invited the Appellant to consider making a statement, an invitation which she declined, stating that she had no information as to the cause of death.

6. Following some further correspondence and after the date of the inquest had been fixed for 21st October 2002, the solicitors for the Appellant wrote on 16th October 2002 expressing concern at the fact that their requests for information had been refused. This letter contained the following, which forms the essential basis of the Appellant’s justification of the need for the information:

“You are aware that we have made a number of requests to you for information concerning the death of our client’s brother, James Goonan, but were refused. Our client is therefore unaware of what witnesses will be before the inquest or what evidence they will give. It is also unclear as a consequence of this whether the witnesses whom you propose to call will represent a complete list of those who are in a position to assist the inquest.

In addition, and of crucial importance to the circumstances of the death of James Goonan, no medical evidence has been furnished explaining the cause of death. This is a matter our client raised with us at the outset and that we specifically requested of you. Our client cannot avail herself of independent advice on any medical evidence in the case as it has not been made available.

Our client is most anxious to avail herself of her entitlement to participate fully in the inquest as a properly interested person, and to learn as much as possible about the circumstances surrounding the death of her brother. It is therefore vital that our client be afforded copies of all statements or draft depositions made by potential witnesses, copies of all medical reports to do with the death of James Goonan and any material in your possession that is relevant to the death of James Goonan.”

7. This letter, written a mere five days before the intended hearing, emphasised the urgency of the request and reserved the right to apply for an adjournment.

8. The Coroner responded on 16th October by stating that he was exercising his discretion by furnishing “the statement of the State Pathologist (being the only technical report furnished to me.” He enclosed a copy of the report of, the State Pathologist, Dr Marie Cassidy, dated 3rd July 2002. This gave the cause of death as being “haemorrhage and shock from laceration to the head,” and cited alcohol and heart disease as contributory factors. The report discussed either an assault or a fall as possible causes but appeared to favour the latter.

9. The solicitors replied on 18th October reiterating their request for the other information but also stating that the Appellant was severely prejudiced so that, in its absence, she had no confidence in the proposed inquest and that neither she nor other members of her family would attend. Furthermore, the solicitors would seek Judicial Review of the Coroner’s decision.

10. In the event, for reasons unconnected with the present dispute, the Coroner was unable to proceed with the inquest on 21st October. It was adjourned. In further correspondence, the Coroner took the position that the draft depositions could only be released “when they have been sworn by the deponents which occurs at the inquest itself.” Subsequently, the date for the inquest was fixed anew for 27th January 2003.

11. On 23rd January 2003, the Appellant obtained leave in the High Court to seek Judicial Review of the decision of the Coroner not to release the draft depositions. In the Judicial Review, the Appellant seeks a number of declarations. However, the essence of the case is that the Coroner is acting in breach of his obligation to respect fair procedures by refusing to release the draft depositions. It is fair to say that the Appellant, although she mentions a number of factual matters of concern in her affidavit, does not claim to be in possession of any concrete information concerning the circumstances of the death of the deceased. She says that there has been a Garda investigation and that “persons have been interviewed and asked to make statements in connection with the death.” She says that these statements may show that “there is another side to the story that might support the non-accidental death theory.” The essence of her case is as set out in the solicitors’ letter of 16th October, quoted above. She is concerned that her brother died from what the Garda Síochána described as “causes other than natural causes.” She does not necessarily accept the conclusion of the State Pathologist and wishes to know, in advance of the inquest, what other evidence it is intended to call.

12. The Coroner, in his affidavit in response made essentially three points:

1. The draft depositions remain unsigned and unsworn up to the time of the inquest and have no standing until that time so that, in the absence of countervailing considerations he should exercise his discretion by not releasing them;

2. An inquest is inquisitorial in nature: the Appellant, by seeking to investigate what she calls “both sides of the story” (see references to her affidavit) is turning it into an adversarial proceeding;

3. Insofar as the Appellant is seeking information other than the draft depositions, this might involve disclosure of sensitive information such as scene of death and clinical photographs, which the Coroner considers should be kept under his control until the inquest.

13. Murphy J, in the High Court, dismissed the application for Judicial Review. He considered that the Appellant was seeking to expand the role of the Coroner beyond the statutory requirement of section 30 of the Coroners’ Act, 1962. He emphasised that there is no lis inter partes, unlike the situation in Nolan v Irish Land Commission [1981] I.R. 23, upon which the Appellant relied. He considered that the release of documents, particularly the depositions of non-expert witnesses, might turn the inquest into adversarial litigation.

14. The Appellant has appealed against the decision of Murphy J. Mr Gerard Hogan, Senior Counsel, for the Appellant, presented a two-faceted argument at the hearing of the appeal.

15. The first head of the argument is based on the European Convention of Human Rights Act, 2003. While accepting that, following the decision of this Court in Dublin City Council v Fennell [2005] 2 I.L.R.M. 288, that Act does not have retrospective effect and that the relevant events in this case, including the commencement of the Judicial Review proceedings all took place prior to the coming into effect of the Act, Mr Hogan sought to distinguish Fennell. He argued that the Coroner’s obligations will fall to be discharged after the coming into force of the Act. He relied on a decision of the English Court of Appeal of 25th July 2005, Commissioner of the Metropolitan Police v Hurst to distinguish earlier English case-law referred to in Fennell. However, in my view it is preferable to consider, in the first instance, the case of the Appellant based on the more traditional ground of the rules of natural and, where necessary, constitutional justice.

16. The Appellant complains that the refusal by the Coroner to permit her to have access to the information she seeks amounts to a denial of fair procedures. She relies on the decision of this Court in Nolan v Irish Land Commission, cited above, approving the decision of Costello J in the same case. Mr Hogan accepted that there is not, in the case of an inquest, a lis or dispute, inter partes, in the same way as there was in Nola. There what was at issue was a proposal by the Land Commission to exercise its statutory powers to acquire compulsorily the applicant’s lands and, where the court ordered the Land Commission to swear an affidavit of discovery of documents. However, he submits that the Appellant is the next of kin of the deceased and, as such, has a right to participate in an inquiry into the circumstances of her brother’s death. The documents in the possession of the Coroner may cast light on how he met his death. It is necessary for the Appellant to have access to them in advance of the inquest hearing, if she is to be able effectively to participate in the inquest.

17. Counsel for the Coroner emphasises the inquisitorial nature of an inquest as laid down very clearly in the Coroners’ Act, 1962. The Coroner is not bound to accord to participants in an inquest the “full panoply of fair procedures.” He is not bound, under the Act, to disclose the contents of depositions until after the inquest. Section 29 of the Act obliges him to preserve and make available documents preserved by him under that section.

18. It is necessary to refer, in the first instance, to the terms of the Act of 1962. Section 30 of the Act delineates in the clearest terms the scope of the inquiry that the Coroner is entitled to conduct. It provides:

“Questions of civil or criminal liability shall not be considered or investigated at an inquest and accordingly every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how, when and where the death occurred.”

19. The inquest is concerned with “how, when and where the death occurred.” The “when and where” pose no problems of interpretation. The answer may or may not be easy in any particular case, but the concepts of time and place are objective ones. If the inquest jury can reach a conclusion, their verdict will name a place and record a time. “How” is a less neat notion. It leaves more room for argument about the scope or extent of the coroner’s inquiry. Where, for example, the evidence shows that the deceased died from head wounds inflicted by an axe swung at him by a named person, the jury can scarcely be constrained to state merely that he suffered head wounds caused by an axe without mention of the human agent. They must not, of course, say that he was murdered, or, by the same token, that the death was accidental. Section 31(1) provides that: “Neither the verdict nor any rider to the verdict at an inquest shall contain a censure or exoneration of any person.”

20. The true meaning and practical implications of these sections has been very clearly explained in two judgments of this Court. Firstly, in Farrell v Attorney General [1998] 1 I.R. 203, at 223, Keane J, as he then was, recalled with approval the words of Lane L.C.J. in R. v. South London Coroner, ex parte Thompson (1982) 126 S.J. 625:-

". . . it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use."

21. The same learned judge, as Chief Justice, repeated these words in the subsequent case of Eastern Health Board v Farrell [2001] 4 I.R. 627. He added, nonetheless, a useful gloss to the section in the following passage at page 637:

“While this provision undoubtedly lays stress on the limited nature of the inquiry to be conducted at an inquest, the prohibition on any adjudication as to criminal or civil liability should not be construed in a manner which would unduly inhibit the inquiry. That would not be in accord with the public policy considerations relevant to the holding of an inquest to which I have referred. It is clear that the inquest may properly investigate and consider the surrounding circumstances of the death, whether or not the facts explored may, in another forum, ultimately be relevant to issues of civil or criminal liability. The intention of the Oireachtas that the inquest should not simply take the form of a formal endorsement by the coroner or a jury of the pathologist's report on the post-mortem is also made clear by s. 31 which, although prohibiting the inclusion in the verdict or any rider to it of any censure or exoneration of any person, goes on to provide in subs. 2 that:-

'notwithstanding anything contained in sub-section (1) of this section, recommendations of a general character designed to prevent further fatalities may be appended to the verdict at any inquest.'”

22. In addition, Keane C.J. recalled that in his earlier judgment he had referred to the public policy considerations underlying the requirement for the holding of an inquest as they were explained in England in the report of the Broderick Committee. They were:-

"I. to determine the medical cause of death;

II. to allay rumours or suspicion;

III. to draw attention to the existence of circumstances which, if unremedied, might lead to further deaths;

IV. to advance medical knowledge;

V. to preserve the legal interests of the deceased person's family, heirs or other interested parties."

23. Neither of these judgments was directly concerned with the question which arises on the present appeal, namely the extent of the right of a person in the position of the Appellant to access, in advance of the inquest, to information in the possession of the Coroner. On this issue, I believe the judgment of Kelly J in the High Court in Northern Area Health Board v Geraghty [2001] 3 I.R. 321 is more pertinent. That case concerned an inquest into the death of a patient in the care of the plaintiff Board. The Board became concerned that the inquest was going beyond the bounds of the 1962 Act, though it had participated actively in the proceedings. In his judgment on the Board’s application for Judicial Review of the inquest proceedings and, in particular, a declaration that the inquest as conducted was ultra vires the Act, Kelly J made at page 335, the following statement which was cited by the learned trial judge in the present case:

“In essence the applicant contends that the rules of natural justice require that the statements of witnesses to be given at a coroner's inquest ought to be furnished in advance of the hearing to the interested parties. There was no case cited in support of this contention. Rather reference was made to general principles dealing with the rules of natural justice. But it is well settled that these rules do not apply in a vacuum. The necessity to disclose material prior to a hearing and the extent of such disclosure will very much depend upon the nature of such a hearing.”

24. Having cited the dictum from Lord Lane L.C.J., cited above, Kelly J went on the say:

“I would be slow to hold that an inquisitorial procedure whose verdict cannot impose civil or criminal liability of any sort on any person requires the full panoply of natural justice requirements of disclosure in advance of the hearing to be applied to it as would be the case, for example, in a criminal trial.”

25. He also went on, however, to state that he did not have to decide that issue in the case before him. He rejected the applicant’s claim on the basis that that it was not entitled, in any event, to the exercise of the discretion of the court in its favour. The dictum of Kelly J is, nonetheless, a useful guide and I agree with it.

26. The guiding criteria for the decision on this appeal can now be considered. It is necessary to consider, firstly, the nature of an inquest and the role of the Coroner. Secondly, it is necessary to consider the status and rights of a person such as the Appellant.

27. I must repeat that the inquest is an inquisitorial proceeding. There is neither prosecutor nor defendant; neither plaintiff nor defendant. There is neither indictment nor statement of claim. There are no parties and nobody is obliged to take a position or give notice of a position as to the “how, when and where” of the death. Furthermore, the inquest is confined to finding facts and is precluded from expressing any views in verdict or rider about innocence or guilt of any person. It is, on the other hand, necessary to bear in mind the qualification of Keane CJ, quoted above:

”…that the inquest may properly investigate and consider the surrounding circumstances of the death, whether or not the facts explored may, in another forum, ultimately be relevant to issues of civil or criminal liability.”

28. Facts themselves are not entirely neutral. They are often pregnant with implications. A pathologist’s report, while entirely scientific in its approach, may give strong pointers either in favour of accident or in the direction of crime, depending on the medical findings.

29. It is in no way inconsistent with the inquisitorial character of an inquest that persons with a legitimate interest should propound a version of the facts which accords with those interests. One may wish to seek to establish facts tending to deflect blame; one may wish to pursue a version which tends to suggest that the death occurred other than due to mere accident or natural causes; one may simply wish to have a verdict which is neutral as regards any such considerations. All of these respective considerations are legitimate.

30. It follows that persons represented at an inquest are entitled to an appropriate level of fair procedures. They are entitled to be present, to call witnesses and to cross-examine. But all of this is subject to the overriding consideration that they are assisting in an inquiry into the facts and are not either responding to or making a charge. They are subject to the directions of the Coroner, who is entitled to conduct the hearing in his discretion, while respecting the legitimate interest of interested persons to pursue lines of inquiry.

31. The extent to which persons are entitled to access to materials in advance depends on the circumstances of the case. As Kelly J stated, the right to fair procedures does not exist in a vacuum. The Coroner has a wide discretion as to how to conduct an inquest, a discretion which extends to the provision of material in advance. The governing criterion is whether the party seeking the material can show that he or she will be prejudiced in participation in the inquest in its absence. A party such as the Appellant is emphatically not entitled to an order for general discovery as in civil litigation or as in Nolan v Irish Land Commission. To quote Costello J in that case, at page 30 of the judgment:

“Domestic and administrative tribunals take many forms and determine many different kinds of issues; no hard and fast rules can be laid down as to what the requirements of natural justice will be in every matter before the many different types of tribunal.”

32. At a later point, at page 33, he said:

“In the absence of discovery and inspection, will the plaintiff have an adequate opportunity to answer the case made against him at the hearing before the lay commissioners? I have come to the conclusion that he will not.”

33. The extent of the obligation of compliance with the rules of natural justice will depend, firstly, on the nature of the judicial or administrative function being performed and the facts and circumstances of the individual case. A Coroner’s inquest does not involve the preferment of any charge or the making of any claim. I agree with Kelly J that it does not call for the application of “the full panoply of natural justice requirements.” I consider that it is necessary to consider the particular case according to its own circumstances.

34. In the present case, the Coroner based his refusal of access to the unsworn depositions on essentially two bases:

· They have no standing until sworn;

· Their release would tend the inquest into an adversarial hearing.

35. It is, of course, true that unsworn and unsigned statements have no probative value. They are no evidence of their contents until verified in some way. On the other hand, it seems clear, at least by implication, that the statements in the present case represent at least the current understanding of the Coroner as to the evidence that will be given by the persons who have made them. For that reason, they are capable of performing the important function of enabling a person such as the Appellant to be informed of the evidence concerning the cause of death which she requires to investigate. If it had been the case that the Appellant had had access to the statements made by witnesses to the Gardaí, the position might well have been otherwise. I would not support the granting of access to further statements merely to assist in establishing inconsistencies. Indeed, insofar as the representatives of the Appellant seek to use these documents for the purpose of cross-examination as to credit when they had not previously been verified, the Coroner may well be entitled, in his discretion to disallow or limit such procedures.

36. Insofar as the Coroner complains of the possibility of the inquest becoming adversarial, I do not believe that is a good or sufficient reason, in the context of this case, for disallowing access. For reasons already given, the Appellant is entitled to have reasonable knowledge of the evidence that is likely to be given. In this case the appellant has expressed to the coroner a specific concern as to how the death of the deceased occurred, including whether an injury sustained by the deceased was sustained as a result of a fall or otherwise. No question arises as to whether these concerns are well-founded or misconceived. That is a matter for the inquest within the parameters of its functions. But she has raised an issue as to how death occurred having demonstrated, in a reasoned fashion, that she has such a concern. In these circumstances her ability to address that issue at the inquest could be unduly prejudiced by the refusal to provide copies of the documents.

37. She is, however, entitled to use that evidence only for the purposes of the fact-finding exercise which is the function of the inquest. To the extent that she or her representatives exceed that purpose, the Coroner will be entitled in his discretion to exercise control over it.

38. I fully accept that the Coroner has discretion as to whether to permit access to documents in advance. I believe he has erred in his exercise of that discretion in the particular circumstances of the present case. His first error was to confuse the probative value of unsworn depositions with their capacity to furnish useful information as to the evidence likely to be given. His second was to treat as necessarily adversarial a request for simple information. For the same reasons, I believe the learned High Court judge erred in ruling as he did.

39. I would, therefore, be in favour of granting a declaration to the effect that the Appellant should be provided with copies of any statements of proposed witnesses in the possession of the Coroner. I would limit the relief to that. I accept that the Coroner has a discretion to decline to disclose sensitive material such as photographs of the body. In the present case, I do not think he has been shown to have erred in the exercise of his discretion in that respect.

40. I would add that the Coroner would be entitled to impose appropriate conditions of confidentiality on a person being granted access to such documents. Whether that is necessary is a matter for him.

41. In the light of this conclusion, it is not necessary to consider the Appellant’s arguments based on the European Convention of Human Rights.

42. I would allow the appeal and would set aside the order of the High Court to the extent indicated. The court should hear counsel as to the appropriate form of the order.