Print - Through the looking glass: An insight into coronial inquests and investigations

Date:: 29 Sept 2021

Coronial inquests and investigations were the subject of the VGSO's monthly seminar in September and we were delighted to be joined by State Coroner Judge John Cain (former Victorian Government Solicitor) and Professor Noel Woodford, Director of the Victorian Institute of Forensic Medicine. In this bulletin, we recap how coronial investigations are conducted in Victoria and provide responses to some questions posed during the seminar.

Key information - Coronial inquests and investigations

- It is a public hearing into a death or a fire. It is not a trial and the coroner will not make findings of guilt or apportion blame.
- An inquest is an inquisitorial process in which the Coroner takes a much more active role in gathering/preparing evidence, questioning witnesses and finding the truth. It is less formal than other conventional court hearings. The rules of evidence do not apply but the proceedings must be conducted fairly.
- The Coroner is a fact finder – they can inform themselves and gather information in any way they see fit. If possible, a Coroner investigating a death must find:
  - the identity of the deceased person
  - the cause of death
  - the circumstances in which the death occurred
  - the particulars needed to register a death with the Registry of Births, Deaths and Marriages.
- Typically findings, comments and recommendations made by a Coroner following an inquest will be published on the Court's website (see s 73 of the Coroners Act 2008), but this is not necessarily the case with investigations.
- If a Coroner makes any recommendations to any public statutory authority or entity, they will be required by s 72 of the Act to provide a written response to the Coroner within three months of receiving the recommendations, which sets out the statement of action, if any, it has or will take in relation to the recommendations. The response will be published on the Court's website.
- No – only held for a small number of investigations (approximately 5%). Note that 20–25 cases are received by the Coroners Court every day.
- As part of their initial investigation, a Coroner will consider the coronial brief and determine whether any further information needs to be obtained.
- In some cases, the Court will request information directly from a person or organisation; for instance, they might request documents or a statement regarding policy. Sometimes the Court might write to a person or organisation and afford them natural justice by inviting them to respond to proposed adverse comments or recommendations contained in a draft Finding.
- At the end of the investigation the Coroner will deliver their Finding.
- A Coroner has discretion to hold an inquest into a death. However, s 52(2) of the Act provides for mandatory inquests in certain circumstances, namely, where the Coroner suspects homicide, where the deceased's identity is unknown or where a person dies (not of natural causes) in custody or care.
- A Coroner is not required to hold an inquest in certain circumstances. These circumstances include where a person has been charged with an indictable offence in relation to the death, or where the death occurred more than 50 years before it was reported to the Coroner.
- The Coroner – there are currently 14 Coroners. They are independent judicial officers.
- Each Coroner has a dedicated lawyer and registrar.
- At the inquest, the Coroner will be assisted by a Coroners Assistant, usually an In-house Solicitor, or by a barrister in the role of Counsel Assisting.
- Individuals or organisations with a sufficient interest in the matter and who have registered as an interested party will often be represented at the hearing by a solicitor and/or barrister.
- Witnesses will be called to give evidence. They will be asked to read out their statement and confirm its accuracy (and, if required, make any corrections to it). They will be asked questions by Counsel Assisting and the legal representatives of the interested parties.
Note: The Court employs approximately 25 lawyers.

Three practical tips for the conduct of coronial investigations and inquests

- If you believe you have a sufficient interest in a coronial investigation, file a Form 31 and a Form 45 with the Court as soon as practicable. The Court will then be aware of your interest and will have your relevant details.
  - Form 31 = Application for Leave to Appear as an Interested Party. You will identify the reason for your application and whether you seek leave to appear for all or part of the inquest.
  - Form 45 = Application for Access to Coronial Documents or Inquest Transcript. It will be necessary to obtain relevant documents from the Court to prepare for an inquest, and these documents might also assist with preparing a response to any request from the Court in an investigation. (Documents you might want to ask for include the coronial brief, documents provided to other interested parties and a copy of any transcript of hearings already held in the matter.) On this Form you will need to identify the reason for your request; for example, if you are an interested party.
    
    Note. You can submit a Form 45 to seek access to coronial documents in both open and closed investigations, at any stage of proceedings, even for matters in which findings have been issued. Documents from 1986 onwards may be requested through the Court and may be released under s 115(2). Documents prior to this are publicly available via the Public Records Office Victoria.
- If you are a witness – familiarise yourself with any statement you have made and any relevant notes you have. If you have legal representation, confer with your lawyers before the hearing – ask them any questions you have about the process so you will feel more comfortable when giving evidence.
- If you are an interested party or acting for one – confer with your relevant witnesses before the hearing so you are familiar with the evidence they will give and you are prepared for any issues that might emerge from their evidence. Make sure you have responded to any requests from the Court for documents (for example, statements and policy documents) because once the hearing commences you will want your lawyers focusing on the evidence rather than attempting to find and/or prepare documents to give to the Court. If there are documents you think might assist the Court, consider providing these before the hearing so the Court and other parties are aware of them and can turn their minds to any issues arising from them. This may ultimately reduce the duration of the inquest.
- If you are involved in a coronial investigation you can assist a Coroner and contribute to the efficiency of the coronial system by making concessions where appropriate. For instance, if it's apparent that the conduct of an individual or organisation has deviated from policy and has played a part in a death, consider conceding this at an early stage of the investigation or inquest. You might do this by filing a statement or letter or by making an oral submission at a directions hearing or at the inquest. Such concessions could lead to the narrowing of issues in dispute at the inquest, reduce the need for witnesses to be called to give evidence, minimise the stress witnesses may be feeling and assist family members come to terms with the death of their family member.
- Similarly, if you have identified learning opportunities as a result of any debrief reports or reviews into a death and you have taken steps to try to prevent other deaths from occurring in similar circumstances, consider communicating this to the Court. You might do this by offering up documents, such as new policies that have been implemented.

Q&A – answers to audience questions

- The Coroners Prevention Unit (CPU) is a specialist service for coroners created to strengthen their prevention role and provide them with expert assistance by, amongst other things, collecting and analysing data relating to reportable and reviewable deaths.
- Within the CPU there is a small group who are responsible for gathering the relevant information from the finding and coronial brief and updating the database. In suicide and drug cases there is a specific database for each.
Professional Standards Command (PSC) is notified of deaths resulting from contact between police and the public and will usually oversee any such investigation. Any report and recommendations made by PSC would usually be provided to the Court once completed and would be a relevant input to the investigation by the Court. Access to such reports by other interested parties to the investigation may be restricted if any application for public interest immunity claim was upheld.

This bulletin has been prepared with contributions from the State Coroner, Judge Cain in answering the audience questions.

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