Content warning: tangential discussion of suicide.
.
.
.
.
By all public accounts, the death of Nicholas Stevens was a tragedy. You can read the background here. This piece isn’t meant to comment on the particular facts of that case. I haven’t heard the evidence but you’d be inhuman not to feel for Mr Stevens’ family. But the case has put into the spotlight a section of the Coroners Act 2006 that I think is constitutionally curious.
Again, before I start. I simply do not know the facts of this case and have no connection to it beyond what I have read in publicly available media reports. The points I am raising do not depend on the particular findings of the Coroner.
Background facts
In December 2018, Coroner Wallace Bain released findings following an inquiry and inquest into the death of Mr Stevens. Mr Stevens died while he was a patient at a mental health facility operated by Waikato District Health Board (WDHB). Mr Stevens walked out from the centre. He was later found dead. According to media reports, the Coroner found that Mr Stevens’ death was a preventable suicide. The Coroner identified shortcomings with the care that Mr Stevens received that permitted him to leave the facility unmonitored when he was unwell.
WDHB’s insurer held concerns at procedural issues during the inquest. The WDHB wrote to the Solicitor-General seeking a new inquiry overseen by a different coroner. In a New Zealand Herald article (whose author had seen a copy of the WDHB’s letter) the concerns were summarised this way:
In the letter dated January 23, 2019, [the WDHB’s lawyer] says he is also complaining to the Judicial Conduct Commissioner about Coroner Wallace Bain’s conduct during the inquest.
[The WDHB’s lawyer] raises concerns about the “numerous procedural irregularities” that he believes were not addressed by Bain prior to him releasing his final findings.
“Rather, he has cursorily dismissed fundamental legal principles that provide for fair processes, and issued findings that seemingly accord with his predetermined view that is not supported by evidence”, the letter claims.
It also criticised the coroner’s decision to dismiss the views of a key expert instead of calling on him as a witness, which was “to the DHB’s detriment”.
[The WDHB’s lawyer] also claims the coroner had been communicating with [Mr Stevens’] family on more than simple procedural issues, giving a “strong impression that this inquiry has not taken place in an impartial way”.
Legal framework
A coroner’s findings are a judicial determination. There is no right of appeal, but if dissatisfied with them you can seek judicial review. There have been two successful modern instances of coroners’ findings being overturned for being unreasonable (see Smith v Jamieson [2012] NZHC 1047 and Carroll v Coroner’s Court at Auckland [2013] NZHC 906, [2013] NZAR 650).
But the Coroners Act 2006 has some sections hiding in the back of it that confer the power to order inquiries in certain instances. (The interesting thing is on whom the power is conferred – and I’m getting to that.)
The first is s 95. Section 95 is the one you use if a coroner hasn’t opened an inquiry in the first place but should have done so when regard is had to the statutory criteria for doing so in ss 57-63. Section 95 relevantly provides:
If satisfied that an inquiry is necessary or desirable and that the responsible coroner has failed or refused to open one, the Solicitor-General or the High Court may order an inquiry to be opened; and in that case an inquiry must be opened and conducted.
The second is s 96. Section 96 is the one you use if a coroner didn’t open an inquiry and was right to do so at the time, but since then there are new facts that have been discovered that mean an inquiry is desirable. Section 96 relevantly provides:
If satisfied that since a coroner decided not to open an inquiry into a death new facts have been discovered that make it desirable to open one and that one has not been opened under section 65 (coroner may decide to open inquiry despite initial decision), the Solicitor-General may order one to be opened; and in that case an inquiry must be opened and conducted.
The third is s 97. Section 97 is different from the other two because s 97 applies when a coroner has already opened and conducted an inquiry. Even if there has already been an inquiry, there can still be another one:
If satisfied that 1 or more inquiries have been conducted into a death but another should be conducted because of fraud, rejection of evidence, irregularity of proceedings, or discovery of new facts, or for any other sufficient reason, the Solicitor-General or the High Court may order another to be opened; and in that case another must be opened and conducted.
It is s 97 that matters the most for the Stevens case and the point I am interested in. But before I get to my point there is one more jigsaw piece. Section 102 provides that the findings of the new inquiry will replace the findings of the old inquiry:
102 Procedure at inquiries ordered under sections 95 to 97
(1) The findings of an inquiry conducted pursuant to any of sections 95 to 97 replace the findings at every previous inquiry (if any) conducted in respect of the death concerned
(2) Except to the extent that the Solicitor-General or the High Court may have ordered otherwise under section 95 or 96 or 97, all depositions taken for the purposes of any former inquiry into a death must be deemed to have been taken for the purposes of an inquiry into the death held pursuant to that section.
(3) Except as provided in this section and sections 95 to 97, an inquiry held pursuant to any of those sections must be held in the same manner as any other inquiry.
So when you take something like s 97 and s 102 together, the Act provides for certain inquiries to effectively be wiped. It’s a do-over power.
Now, it’s a do-over power that can only be exercised in certain circumstances. Section 97 says you can have a do-over in one of five circumstances:
- Fraud.
- Rejection of evidence.
- Irregularity of proceedings.
- Discovery of new facts.
- Any other sufficient reason.
And of course it’s not just the mere presence of one of those things (which is good, because coroners, like any court, reject evidence all the bloody time). It has to fall into one of these categories and rise to a level that satisfies the High Court or the Solicitor-General that a new inquiry – that will replace the old one – be conducted.
Why can the Solicitor-General effectively overrule a judicial determination?
Which leads me, finally, to my point. Why is the Solicitor-General conferred this power? Why can a member of the executive effectively overturn a judicial finding? The High Court? Yes. A court of superior jurisdiction could overturn a coroner’s court finding every day of the week. But the Solicitor-General? The Solicitor-General can’t order the District Court to hold a new trial that will replace the old trial. The Solicitor-General can’t order the Tenancy Tribunal to hold a new hearing that will replace the old hearing.
I will come on to thinking through potential reasons in a little while, but first a small collection of odd things about this power.
First, an identical power is conferred on both the Solicitor-General and the High Court. This co-terminous power seems a little strange and I can’t quite think through why it’s like that. It might make sense if the Solicitor-General were conferred the power in respect of certain grounds, and the High Court on others. For example, if the s 97 power was only conferred on the Solicitor-General in the case of new facts being discovered then that would at least be conceptually consistent with the power in ss 95 and 96. But it’s not. The result is that you have to ask who would ever bother going to the cost and bother of commencing proceedings in the High Court, when you could simply write a letter to the Solicitor-General and let them do all the work. Also, if you apply to either the Solicitor-General or the High Court and are unsuccessful, can you then make a further application to the other? The section is drafted in a way that raises ambiguities.
Second, it didn’t used to be that way. The division used to be split along the way I just identified. In the Coroners Act 1988, s 38 permitted the Solicitor-General to order a new inquiry if new facts were discovered. But if a new inquest were to be ordered on the grounds of “fraud, rejection of evidence, irregularity of proceedings, or discovery of new facts” or “for any other sufficient reason” then s 40 of the Coroners Act 1988 only empowered the High Court to make the order (on an application that could only be brought by the Solicitor-General). Examples of that can be seen in Solicitor-General v Coroner of Balclutha HC Dunedin CIV-2005-412-749, 21 March 2006 and Solicitor-General v Coroner at Kaitaia HC Wellington CP258/01, 13 March 2003.
Before the 1988 Act was the 1951 Act. Under s 27 of the Coroners Act 1951 the Attorney-General could order a coroner to re-open an inquest if satisfied the finding was “defective or erroneous”. But, crucially, the coroner holding the re-opened inquest “may accept such of the findings and of the evidence given at the previous inquest as appear to him to be correct” (Coroners Act 1951, s 27(2)). So although the Attorney-General could say “take another look”, it remained a matter for the coroner to say “yeah I have and it’s fine”. No real usurpation of role there then. And the (then) Supreme Court retained the orthodox power to overturn findings on the application of the Attorney-General (Coroners Act 1951, s 26). An example of the Supreme Court doing that can be found in Re Ford’s Inquest [1956] NZLR 805 (SC).
So the 2006 Act changed things. And the reasons why are not recorded anywhere. The Law Commission’s report and early draft of what became the Coroners Act 2006 recorded its view that the Solicitor-General should be able to order a new inquiry where new facts are discovered (refer Law Commission Coroners (NZLC R62, 2000) at [458]-[460]). Again, this seems a reasonably sensible division. But that did not translate into was what clause 87 of the Coroners Bill 2005 which conferred the power in its present terms equally on the Solicitor-General and the High Court. The change was not commented upon during the remainder of the legislative process. The reason will be lost in the mists of the Parliamentary Counsel Office.
A third thing that is unusual about the conferral of the power in s 97 on the Solicitor-General is the risk of a conflict of interest. The Solicitor-General – through the Crown Law Office – will often appear as counsel for government departments in coronial inquiries. In cases where that happens, why should the Solicitor-General also be conferred the do-over power in s 97? It seems to set up the risk of a structural conflict that would be avoided by simply reserving the power for the High Court.
A fourth thing is that New Zealand is completely alone in giving this power to one of the law officers of the Crown. None of the Australian jurisdictions do: see, for example, the Coroners Act 2009 (NSW), s 85, and Coroners Act 2008 (Vic), s 84 and Coroners Act 2003 (Qld), s 50. Instead they reserve it to their courts (either with or without first permitting the coroner herself to consider holding a new inquiry). As does the United Kingdom (either by way of straight judicial review, or through the fiat of the Attorney-General: see Coroners Act 1988 (as amended), s 13, which remains in force following the enactment of the Coroners and Justice Act 2009).
The fifth point is that there is no obvious reason why the Solicitor-General needs to be included in the s 97 power. The task of auditing an inquiry for procedural irregularity seems well within the High Court’s wheelhouse. The Solicitor-General almost certainly costs less than commencing proceedings in the High Court, so from an access to justice perspective it’s nice the Solicitor-General can do this. But if it’s justice you want access to, I am still to be convinced that a member of the executive tipping a decision of a member of the judiciary is consistent with “justice” or the constitutional order.
Is there a good reason for giving the power to the Solicitor-General?
Notwithstanding the points above, there might be some reasons why it’s okay that the s 97 power resides with the Solicitor-General.
The first reason might be that a coronial inquiry doesn’t determine civil, criminal or disciplinary liability. It can only establish facts and make recommendations and comments. Even if it’s not completely acceptable for the Solicitor-General to effectively overturn a coronial finding, it’s probably more acceptable for the Solicitor-General to be ordering a judicial officer to do that where there hasn’t been any determination of parties’ legal rights.
That’s true, but I don’t feel carried particularly far by that point. Parliament has recognised the status of the Coroner’s Court as an inferior court (see Inferior Courts Procedure Act 1909, s 2(c)). Coroners are proper judicial officers. And coroners do determine legal rights when they issue non-publication orders at least. All of that adds up to say that even if coroners aren’t judges, they are properly judicial officers, sitting in a court. The executive shouldn’t be able to be able to decide that there was an irregularity in proceedings such that a do-over is necessary. That just seems like a Big Deal.
The second reason might be that the Solicitor-General can be trusted to act independently. As a statement in any individual case, I have no doubt that is correct. My concern is with the broader constitutional impact, and why the role is allocated to the Solicitor-General. This question of trusting the Solicitor-General was partly addressed in Berryman v Solicitor-General [2005] NZAR 512 (HC). That case was about discovery in the context of a judicial review of the Solicitor-General’s refusal to order a new inquiry in the light of new facts under s 38 of the Coroners Act 1988.
Justice Wild held that the Solicitor-General’s functions under the 1988 Act were a “function of a quasi-judicial nature” (at [40]) and the Solicitor-General will act “independent[ly] of government direction” (at [34]). That was in the context of holding that the Solicitor-General was not the “Crown” when she exercised powers under s 38. However, the analysis in Berryman only had to contend with the power under the 1988 Act to order a new inquiry if there were new facts. The 2006 Act confers several new powers. That at least exacerbates the problem given it expands the grounds on which the Solicitor-General can interfere. The “I’m doing this independently” excuse has to hold more water when the 2006 power confers a much wider power to interfere.
Because it’s one thing for the Solicitor-General to say “I think these new facts might make a difference”. The Solicitor-General can say that with no indictment of the coroner’s findings. It’s quite another to say there was a procedural irregularity in the coroner’s inquiry. That requires criticism of a judicial officer. Natural justice likely requires the Solicitor-General to hear submissions from affected parties, and possibly from the Coroner. That’s asking a lot of a law officer to retain a neutral role when administering certainly extraordinary powers. It’s less like a law officer function and much more like a proper judicial one.
But, in theory, the point in Berryman still holds. And we know what the Solicitor-General does under s 97 because someone once gave to Stuff a copy of a Crown Law letter to a family member. Stuff published it and I saved it at the time. The test the Solicitor-General applies is set out in the picture below (apologies for the wonkiness – it was scanned that way, and apologies for the wonkiness in the other sense):
So there’s no doubt that the test is being applied in a judicial way. And that probably answers my point above about the risk of structural conflict. It’s a “law officer thing”, and we trust that “law officer things” are done properly. Leave Una alone! But, on a normative level, if s 97 requires a person to act judicially, why isn’t the power only given to someone whose day job it is to act judicially? Like a High Court Judge.
A third response to the issue is to take a further step back (the macro-macro view, if you will), and say that, well, Parliament enacted the section. Parliament can do what it wants, and if Parliament wants to confer on one of the law officers the power to override decisions of the judiciary, then Parliament can do just that. At that level, that’s in perfect constitutional order. Fine, I guess. Parliamentary supremacy is a cop out though. And the change from the predecessor Acts with no stated reason and the fact that no other jurisdiction does what we do makes me less inclined to trust Parliament knew what it was doing on this one. Why is this so out of step with the rest of our constitutional order?
Concluding thoughts
I’ve no idea what the Solicitor-General will decide in the Stevens case. There’s a chance that the new Commissioner of the WDHB will pull the case. That will make the entire thing go away.
But if the Solicitor-General does have to make a decision it will be (as far as I know) new territory in terms of having to grapple directly with one of the new grounds in s 97 of the Coroners Act 2006. It will be interesting to see to how the Solicitor-General chooses to engage with that task.
I can’t really offer comment given I know none of the facts. Despite that, my gut instinct is that it would be appropriate for the Solicitor-General to decline to exercise her power under s 97 in some instances where she considers it is more appropriate for the applicant’s grounds to be determined by the High Court. That outcome is not demanded by the wording of the section, but is appropriate in a constitutional sense.
The broad dividing line as I see it is if the reasons are internal or external to the inquiry. New facts are external to the inquiry. They require regard to the inquiry but no comment on or criticism of the sufficiency of the inquiry. The Solicitor-General can perform that role in the way that Berryman v Solicitor-General okayed.
Most procedural irregularities are going to be internal to the inquiry. You need to scrutinise what the coroner did and how they did it. Where the task approximates judicial review, it’s not appropriate for the Solicitor-General to exercise the do-over power.
We’ll see how that plays out. And we can all hope that in this case justice doesn’t require increasing the pain of Mr Stevens’ family.
Strictly obiter 