We received two separate complaints from members of the public about an officer’s conduct during an inquest. The complaints similarly alleged that the

Officer:

undermined public confidence in the independence and impartiality of the Court by conducting the inquest with a flag representing a marginalised group within the community draped over the front of the bench (the flag allegation);
only called expert witnesses who held one-sided views; and
failed to appoint a contradictor to present alternative evidence and experiences.¹

The complainants said that the display of the flag ‘significantly undermined’ their confidence in the Officer’s fair and judicious conduct of the inquest.

After an initial review of the complaints, we were satisfied that the flag allegation warranted further consideration in accordance with the JCV Act.

We watched the audio-visual recordings of the hearings, considered photographs of the front of the bench, provided by the Court and read the Officer’s findings.

The Officer was provided with an opportunity to respond to the complaints. The Officer provided a detailed response (in summary):

providing background and context to the inquest, noting significant consultation about courtroom setup in the lead-up to the inquest;
accepting that they had approved the courtroom’s setup, including the flag’s display, as prominent;
explaining that the flag’s display was a specific gesture geared towards enhancing cultural safety of members of the marginalised group, not intended to convey any particular message or view on the topics under consideration;
setting out their understanding of the flag as non-controversial and noting its display in other forums;
reflecting on the Court’s tradition of modifying its processes and setup to improve cultural safety;
contending that the flag assisted witnesses in giving evidence by helping to place them at ease, noting many were members of the marginalised group;
expressing regret that some people felt alienated from the hearings;
reflecting on how they would handle a similar situation in the future; and
noting the unique jurisdiction of the Court, with reference to the objects and duties under the relevant legislation.

The information provided by the Officer was important to the outcome of the investigation.

We considered the principle that officers must not enter the political arena. To this end, we considered the historical context of the flag and its present status. We noted that the flag continues to be the subject of differing perspectives, but observed that no objection was raised to it during the hearing. Conversely, some witnesses in their evidence expressed approval of the flag.

We considered the duty to maintain order and decorum in the courtroom, as well as the necessity that courtrooms remain neutral terrain. Although the flag was objectively large, we accepted that ‘instant connection’ to a sense of safety for members of the marginalised group was at ‘the forefront of [the Officer’s] mind’ in displaying it. We also considered the inquisitorial jurisdiction of the Court, noting that a coroner must conduct an inquest:

with as little formality and technicality as the interests of justice permit; and
in a way that, as far as practicable, makes the inquest comprehensible to interested parties and family members who are present.

Having regard to all the circumstances, we found that the flag’s display in the courtroom (albeit unorthodox) was not such a departure from order and decorum as to infringe the standards of conduct generally expected of judicial officers. We were satisfied that a reasonable community member would not regard the Officer as having undermined public confidence in the independence and/or impartiality of the Court. The complaints were dismissed.

¹One of the complaints alleged further matters, which we were satisfied related to the Officer’s judicial function and did not disclose any conduct that may have infringed the standards of conduct generally expected of judicial officers.

Responding to new and developing issues in judicial ethics