Coroners’ powers to prohibit publication of the name of a deceased person

Introduction

Coroners have powers to make non-publication orders under s 74 of the Coroners Act 2006.  It is not clear whether those powers extend to suppressing the name of the deceased.  The words of the section do not confer an express power to do so.  Coroners exist to make findings on deaths and to allay suspicion.  Publishing that someone has died seems pretty fundamental to that task.  Against that, it is not hard to imagine a rare but compelling case where suppression of the deceased’s name should be considered: where someone else’s life is threatened by the publication, for example.

In this piece I argue that coroners have a power that can, in effect, prohibit publication of the name of the deceased.  The power exists because a coroner may order non-publication of evidence.  If evidence in respect of the deceased’s name is suppressed, then the name cannot be made public as a consequence.

Of course, even though s 74 confers the power there must still be grounds to justify the use of the power in any particular case.  The orthodox approach to issues of non-publication will involve a fine grained weighing of reasons for suppression as against open justice and freedom of expression.  At the end, I comment a little on what evidence might be necessary for a coroner to suppress a deceased person’s name.  The main point, though, is simply that the terms of s 74 confer the effective power to prohibit the publication of the name of a deceased person.

Although there is some looseness of terminology, this article uses the terms “suppressed” and “subject to a non-publication order” interchangeably.

The framework

Coroners’ powers to prohibit publication are set out in s 74 of the Coroners Act 2006 (Act).  That section provides:

74           Coroner may prohibit making public of evidence given at any part of inquiry proceedings

If satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of—

(a)          any evidence given or submissions made at or for the purposes of any part of the proceedings of an inquiry (for example, at an inquest); and

(b)          the name, and any name or particulars likely to lead to the identification, of any witness or witnesses.

The definition of “make public” is found in s 73 of the Act.  It refers to means of general dissemination such as newspapers, television and the internet.  It is important to note that, even if a s 74 order is made, a coroner will still use a deceased’s name in their written findings and the official forms connected with the determination.  The prohibition is only on a person making that information public in the ways contemplated by s 73.

The application of s 74 is governed by Whata J’s guidance in Gravatt v The Coroner’s Court at Auckland [2013] NZHC 390, [2013] NZAR 345 at [43]:

In my view, therefore, the proper observance of freedom of expression (and open justice) demands a three step threshold inquiry. First, there must be express statutory authority to suppress. Second, the authority must be, where possible, interpreted and exercised consistently with freedom of expression. And third, even where those two qualifying conditions exist, any discretionary infringement of that freedom must be justified. The failure to undertake any of these three steps will make the decision to suppress amenable to review.

(footnotes omitted)

The question of suppressing the name of the deceased arises in respect of the first step of the Gravatt three step threshold inquiry.  Is there express statutory authority to suppress?  On its face the wording of s 74 does not refer to prohibiting publication of the name of the deceased.  Clues point in both directions.  A coroner may prohibit publication of evidence, which will in almost every case include the name of the deceased.  However the section also refers expressly to prohibiting publication of the names of witnesses, and is then silent on prohibiting the name of the deceased.

Current practice

Coronial practice to date has tentatively favoured the suppression of deceased’s names, although the practice is not widespread.  There is also significant debate among coroners whether the power exists.  Cases in which this has occurred include Re C CorC Palmerston North CSU-2009-PNO-260, 23 July 2012; Re C CorC Wellington CSU-2008-WGN-089, 25 July 2012; Re M CorC Wellington CSU-2008-WGN-754, 14 January 2013; and Re P CorC Palmerston North CSU-2012-PNO-310, 4 December 2012.  For the most part, these cases have assumed a power to suppress with no analysis.  Coroners have referred broadly to the fact that suppressing a deceased’s name should be something done only rarely.  Before engaging further three examples where coroners provided more detail for their decision may be instructive.

In Re R CorC Hastings CSU-2013-PNO-463, 10 December 2015 Coroner Devonport ordered that the name of the deceased be subject to an order under s 74.  Coroner Devonport’s reasons encapsulate the traditional view:

[23] … Mr R’s name and the fact that his death was a suicide must be “evidenced” in order for me to be able to make a s 74 prohibition order in respect of them.  Mr R’s name is found in the evidence ie the Statement of Identification of Mr R is evidence that I have accepted as part of my inquiry into his death.  In contrast to his name, the fact Mr R’s death was self-inflicted is not evidence.  While there are statements and evidence that describe how Mr R [took his life], my finding of suicide is not in any evidence.  It is a finding that I have made.  Therefore while I have authority to prohibit the making public of Mr R’s name, I do not consider I have authority to prohibit the fact that I have found Mr R’s death to be self-inflicted.

Coroner Devonport went on to find that the psychiatric risk faced by Mr R’s brother, who bore feelings of guilt in respect of Mr R’s death and had provoked a serious risk of self harm, was sufficient to justify an order under s 74 prohibiting the publication of Mr R’s name.

In the case of Re Krystal CorC Auckland CSU-2008-AUK-695, 9 May 2013 Coroner McDowell made orders under s 74 of the Act prohibiting publication of a range of matters some of which meant that in effect the surname of the deceased was also prohibited from publication.  In particular at [76] Coroner McDowell prohibited “the names of Krystal’s siblings and any particulars that may lead to the identification including Krystal’s surname”.  The effect of this is that at least part of the deceased’s identity was prohibited from publication.

This decision demonstrates how suppression of evidence –which is squarely permitted by s 74 – has the effect of consequentially suppressing other matters, such as the name of the deceased.  The same thing happens in criminal cases where a victim of sexual offending has automatic suppression.  Where the victim is related to, or shares a surname with the offender which means they could be identified, the offender’s name cannot be published, even if the offender does not have suppression in their own right.

The third example is Re Buckley CorC CSU-2017-CCH-145, 20 March 2017.  Coroner Elliott considered whether s 74 provided authority to suppress a deceased’s name.  Coroner Elliott did not have to decide the point because his Honour determined there was insufficient evidence presented in support of the application.  Nevertheless, the Coroner set out competing arguments as to why and why not s 74 extends to suppression of the deceased’s name:

[29] There are some arguments against the proposition that section 74(a) provides a basis for prohibiting publication of the name of the deceased:

(a)          There is a public interest in identification of the names of those who died and these names are a matter of public record pursuant to the Births, Deaths, Marriages and Relationships Registration Act 1995.

(b)          If Parliament had intended that a coroner should have power to prohibit publication of the name of the deceased this would have been specifically referred to in section 74.

(c)           The identity of the deceased is a finding made by the coroner. The identity is established by evidence but the evidence is not conclusive of identity – it requires a formal finding. Although section 74(a) refers to ‘evidence’ it does not refer to, and therefore does not authorise, an order prohibiting publication of a coroner’s finding as to identity.

[30] There are also arguments in support of the proposition that section 74(a) provides a basis for prohibiting publication of the name of the deceased:

(a)          A coroner’s finding as to identity must be based on evidence the coroner has received. A coroner is therefore entitled to make an order prohibiting publication of evidence relating to the identity of the deceased, as long as the criteria set out in section 74 are met. Although the consequence of this is that a part of the coroner’s finding is prohibited from publication, this would not undermine the legitimacy of the order.

(b)          … It would be anomalous if a coroner did not have the jurisdiction to address the possibility of harm to a family member arising from publication of the name of a deceased whose death is before the Court.

(c)           The Criminal Procedure Act 2011 contains provisions under which restrictions on disclosure or publication may be imposed where the physical or mental health of a person will be put at risk if publication were to occur. … It would be anomalous if the name of a defendant could be suppressed where publication may result in harm to an innocent third party, but the name of a deceased person could not.

(footnotes omitted)

Assessment of the arguments

In Buckley Coroner Elliott did not indicate which of the two arguments he favoured.  However in my view the arguments in favour of the proposition that s 74(a) provides the basis for prohibiting publication of the name of the deceased stems principally (and perhaps exclusively) from the “suppression of evidence” point (set out at [30](a) in the quoted passage above and in the quote from Coroner Devonport’s finding in Re R).

By contrast, neither of the points at paragraphs [30](b) and [30](c) seem particularly persuasive.  Both amount to reading in a power to suppress a finding, when that power does not exist on the plain words of the section.  Appeals to common sense or necessary implication cannot, by themselves, create a power of suppression.  Inferior courts can prevent abuse of their own procedures, but they cannot accord themselves powers which have not been bestowed by Parliament (see generally: McMenamin v Attorney General [1985] 2 NZLR 274 (CA)).  However nice it would be to have an express power to suppress names, it is clear that s 74 does not afford one directly in the same way the Criminal Procedure Act 2011 confers a power to suppress witness or defendant names.  The fact that the Criminal Procedure Act 2011 has such a power does not mean as a matter of logic that the Coroners Act 2006 should be read as having such a power.  Coronial reliance on analogies to powers of name suppression in the criminal jurisdiction has been discouraged recently in Stuff Ltd v Coroner’s Court at Palmerston North [2018] NZHC 2556 at [47].

It follows that the argument in favour of a coroner’s power to suppress the identity of a deceased rises or falls on the fact that it is evidence before a coroner.  While this is a fairly narrow basis, I think it is a sufficient one.  That is especially so when it can be demonstrated that the counterarguments carry little persuasive weight.

Counterarguments are not persuasive

The first possible counter argument identified by Coroner Elliott at [29](a) of Buckley was that there is public interest in the identification of the names of those who died and that also these names are a matter of public record pursuant to the Births, Deaths, Marriages and Relationships Registration Act 1995 (BDMRR Act 1995).  There are two arguments there.  In relation to the first, the undoubted public interest in knowing the names of those who died is a matter to weighed in the balancing test under steps two and three of the Gravatt test.  At step one all that is asked is whether Parliament put the tool in the coronial toolbox; not whether the tool should be used in an individual case.  It does not really go to whether or not the power to suppress names exists.

In relation to the second argument at [29](a) – the fact that deaths are recorded on the BDMRR Act 1995 – again this is undoubtedly correct.  But a s 74 order does not mean that those entries on the Register will have to be suppressed.  There is a requirement for the Register to accurately list the names of everyone who has died in New Zealand (BDMRR Act 1995, s 34).  That provides statutory authority for doing so, even if a s 74 order covered this action.  In any event, it is by no means clear that an order under s 74 could extend to cover inclusion of a name on the Register.  The Register can only be searched by a Registrar (BDMRR Act 1995, s 74).  That means the Register is not publicly accessible in a way that means it falls within the definition of “make public” in s 73 of the Coroners Act 2006.

A related argument is that recording a deceased’s name on the Register lets the cat out of the bag as far as suppression goes.  That is correct in the sense that the fact of a death will be able to be discovered.  But an order under s 74 will still have a purpose.  It will mean that nobody can publish a link between the name of a dead person and a particular set of coronial findings.  That still serves a useful function even if the Register names the deceased, because the name by itself does not link to the coronial findings.  In this way, the fact of publication on the Register does not bear on the question of whether or not a coroner has the power to suppress.

A parallel example can be given.  Coroners are frequently required to suppress the means of a self-inflicted death (indeed the Act prima facie grants this suppression).  This is normally based on a public health justification to prevent copycat acts.  When that suppression exists nobody can make public that information in connection with a death that can otherwise be reported.  But the suppressed means of death is frequently published in other forums.  For example the Chief Coroner’s annual suicide statistics press release lists the various ways in which self-inflicted deaths have occurred over the preceding year.  The important point here is that suppression plays a role in separating the subject of the suppression from the rest of the coronial findings.  Simply because information that is suppressed is published in some other forum (be it the name on the Register of Deaths or the means of death in suicide statistics) suppression still serves a useful function.

The next counter argument identified at [29](b) of the Buckley ruling is that if Parliament had intended that a coroner should have power to prohibit publication of the name of the deceased this would have been specifically referred to in s 74.  But if one accepts that the name of the deceased forms part of the evidence then it is unsurprising that Parliament has not expressly referred to the name of the deceased as a matter that may be suppressed in the wording of s 74.  This is because Parliament has already effectively done so by using the term “evidence”.

On the other hand the wording of s 74(b) refers to prohibiting publication of the names of witnesses.  Can Parliament be taken to have turned its mind to whose identities may be of the subject of non-publication orders, and deliberately excluded the name of the deceased from that list?  In my view, the answer is no.  The express reference to suppressing witness names is a necessary supplement to the power to prohibit publication of evidence.  That is because witnesses at coronial inquiries can give evidence about matters relating to the death but the names of those witnesses will not necessarily be evidence themselves.  For example, a pathologist may give evidence of the cause of death in that pathologist’s expert opinion.  The content of that evidence will be evidence which may be subject to suppression under s 74(a).  But without s 74(b) there will be nothing to prohibit the publication of the name of the person who gave that evidence.  Therefore s 74(b) is necessary in order to ensure that a coroner can prohibit both the content of the evidence in the identity of the person who gave it.  In contrast, it is clear that there is no special need to prohibit the name of the deceased, because the deceased is not going to be giving evidence at the inquiry.  The deceased’s identity will only be found in the evidence given by other persons.  Therefore the fact that Parliament has included an express power to suppress the names of witnesses should not be taken as an expressio unius type argument where Parliament has expressly contemplated excluding the name of the deceased from the powers of prohibition.  To the contrary it simply confirms that the name of deceased will only be found in evidence and therefore the power to suppress evidence of a deceased’s person’s name falls squarely within the terms of s 74(a).

Paragraph [29](c) of Buckley bases the third argument against suppressing the identity of the deceased on the fact that the identity of the deceased is a finding made by the coroner.  Although s 74(a) permits suppression of evidence, it does not permit suppression of findings.  I agree.  Re R, quoted above, is an example of this.  The finding that a death was a suicide is a separate finding.  It is a conclusion by the coroner – it is not found anywhere in the evidence.  And s 74(a) only gives the power to suppress evidence.

But where a finding overlaps with evidence, a s 74 order in respect of evidence will have the consequential effect of prohibiting publication of the finding.  This is not a surprising conclusion; the coronial regime operates successfully with the effective suppression of findings all the time.  The cause of death or the circumstances of death are frequently suppressed where that cause of death is self-inflicted (due to the operation of s 71 of the Act).  It does not seem to undermine the coronial regime that one of the key matters that a coroner has to determine and make a finding about is not made public.  Similarly, coroners suppress matters that form parts of the circumstances of death frequently: for example, the identities of persons who may have inadvertently contributed to a death.

So, while it is correct to say that s 74 does not permit suppression of findings outright, findings can still be consequentially suppressed where the underlying evidence is subject to a non-publication order.  The fact that the name of the deceased is a “finding” does not confer immunity from non-publication, where the evidence underlying it is subject to non-publication.

Conclusion on power to make non-publication order

It is important to bear in mind what a coronial non-publication order does.  It does not render the name of the deceased a secret that will be stricken from the record, never to be used again.  The name of the deceased will still be in the written coronial finding.  The name of the deceased will be known to the family and any interested parties.  The name of the deceased will be provided to the Secretary of Justice and included in the requisite forms under the Act.  The name of the deceased will be placed on the Register of Deaths.  And indeed the finding can be disseminated person to person, as long as it does not contravene the definition of “make public” in s 73 of the Act.  All a non-publication order does is prevent mass dissemination.

The name of the deceased will be found in the evidence.  Section 74(a) is plain on its face that evidence may be the subject of an order under s 74.  In turn that will mean that a finding of the deceased’s identity will not be able to be published, notwithstanding that the finding itself is not the subject of a non-publication order.

Next steps in Gravatt

Of course, simply because a coroner has the power to make a non-publication order in respect of the evidence of a deceased’s name, it does not follow that such an order is appropriate in every case.  The traditional cautions and high evidential threshold necessary for a non-publication order will apply.  Indeed, it may be even more of an uphill battle to convince a coroner that a deceased’s name should be suppressed given that identifying the deceased is a core part of the coroner’s role.  The remarks of Kós J (as he then was) in Matenga v Coroner’s Court at Dunedin [2014] NZHC 2994, [2015] NZAR 289 at [8] are apposite:

it is an essential feature of the Coroner’s inquest process that it work in public, so that the community is fully informed of circumstances that led up to and were causative of the death being inquired into. An order under section 74 should be exceptional.

Steps two and three of Gravatt involve their own detailed inquiries as to whether non-publication is warranted given the types of reasons advanced by an applicant (step two) and the evidence in support of those reasons (step three).  Particularly at step three, there will be a need to show that there is a factual foundation justifying departure from the principles of open justice in this particular case.

The coronial function in respect of allaying fears of the community and of being seen to be an independent investigation into a death mean that publication of a deceased’s name and the fact that someone has died will be a vital part of the coronial role.  It follows that in respect of prohibiting publication of the name there is going to need to be compelling evidence why suppression is justified.  It may well be that only in a case such as R, where there was expert evidence attesting to a realistic and imminent risk of self harm by another person, that an order for non-publication of the deceased’s name could ever be justified.

Conclusion

Coroners have the power to prohibit the publication of evidence.  That includes evidence establishing the identity of a person.  If that evidence is suppressed then the consequential effect is that a coroner’s finding as to identity cannot be made public.  While this does not constitute an express power to prohibit the finding of identity per se, it will amount to the same thing in practice.

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