Changes to the ACT Coroner Act

Changes to the ACT Coroners Act.
What do you need to know as a
result?
Victor Harcourt and Amy Winner
5 August 2015
#Insert FileSite Doc ID

> What are the changes?
> What did the legislation say before the
changes?
> How does the legislation compare to
other States and Territories?
> Why did the changes come about?
> What are the implications of the
changes?
Overview
2

>Introduced by the Justice and Community
Safety Legislation Amendment Act 2015 and
the Courts Legislation Amendment Bill 2015.
>Brought about by the Review of Dr Charles
Naylor.
>Made 3 significant changes to the Act.
Background
3

> Amended the definition of deaths into
which a coroner must hold an inquest
> Removed the words ‘is killed or is
found drowned’.
Jurisdiction of Coroner
5

6
OLD S13 NEW S13
(1) A coroner must hold an
inquest into the manner and
cause of death of a person
who –
(a)is killed;
(b)is found drowned; or
(c) dies, or is suspected to
have died, a sudden
death the cause of which
is unknown; or
(d)dies under suspicious
circumstances…
(1)A coroner must hold an
inquest into the manner
and cause of death of a
person who –
(a)dies violently, or
unnaturally, in unknown
circumstances; or
(b)dies under suspicious
circumstances…

> Introduced a section to the Act allowing a
person to refuse to answer a question on
the basis it may incriminate them.
> The Coroner may still require a person to
answer a question.
Privilege in relation to
self-incrimination
8

> The previous section of the Act:
> allowed a Coroner to require a witness to
answer a question or produce evidence
> if they refused to answer the question,
hold them in contempt
> Provided that the evidence of a witness
could not be used in other proceedings.
self-incrimination
9

> ‘the right to privilege is a basic and substantive
common law right, not just a rule of evidence. That
is, it is not a privilege which is concerned only with
the use to which answers given may be put at, or in
connection with, a trial. It is a privilege which
permits the refusal to make an answer regardless of
whether the answer is admissible as testimonial
evidence. Privilege is the right not to answer any
allegation of wrong-doing.’
self-incrimination
10

11
OLD S49(2) NEW S51B
(2) A Coroner may –
(a) require a witness to
answer a question put to
the witness; and
(b) if a person appears
before a coroner under
a subpoena – require
the person to give
evidence or produce a
document or thing
stated in the subpoena.
(1)This section applies if a
witness for an inquest or
inquiry objects to giving
particular evidence, or
evidence on a particular
matter, on the ground
that the evidence may
tend to prove the witness
(a) has committed an
offence against or
arising under an
Australian law or a law
of a foreign country; or
(b) is liable to a civil penalty.

> Reasonable grounds for objecting.
> If reasonable grounds exist the witness
must not be required to answer the
question unless required.
> If a person chooses to willingly give
evidence or is required a certificate will
be provided.
The application of the section
12

> The evidence does not incriminate them and
> The interests of justice require.
> The new provision also provides that the
evidence for which a certificate is given
cannot be used against them in an ACT
court.
When can a witness be
required to answer a
question?
13

14
State/Territory Provision
ACT • S51B Privilege in relation to self-incrimination.
Provision for certificate.
VIC • S3.10 of the Evidence Act applies, which
includes client legal privilege and privilege in
relation to self-incrimination). S57 Privilege in
relation to self-incrimination with the provision of
a certificate.
TAS • S54 Statements or disclosures made by
witnesses at inquest. Where a statement or
disclosure is make in the course of giving
evidence in an inquest it is not admissible in
any civil or criminal proceeding in any other
court other than a prosecution for perjury in the
giving of that evidence. No certificate provision.

> Introduces a completely new section to
the Act.
> Not a new concept to the Australian
Coronial Jurisdiction.
Coronial Investigation Scene
16

17
Section Coronial investigation scene order
68C (1)If a coroner is satisfied that an
investigation for an inquest or inquiry
should be carried out at a particular
place, the coroner may issue and order
to a police officer or other person to –
(a) establish a coronial investigation
scene at a stated place; and
(b) exercise coronial investigation scene
powers at the place state in the order;
and
(c) enter and stay at the place for those
purposes.

> A police officer may:
> Direct a person to leave the scene or remove a vehicle, vessel
or aircraft from the scene;
> Remove from the scene a person or vehicle, vessel or aircraft
where there is failure to comply with a direction to leave or be
removed;
> Direct a person not to enter the scene;
> Prevent a person from entering the scene;
> Prevent a person from removing or interfering with evidence
from the scene and for that purpose detain or search the
person;
> Remove an obstruction from the scene;
> Perform any necessary investigation;
Coronial Investigation Scene
– Police Powers
18

> Conduct any necessary examination or process;
> Open anything at the scene that is locked;
> Take electricity, gas or any other utility for use at the scene;
> Photograph or otherwise record the scene and anything in it;
> Seize and detain anything that might provide evidence in
relation to the inquest or inquiry or provide evidence of the
commission of an offence;
> Dig up anything;
> Remove walls, ceilings, or floors of a building, or panels of a
vehicle;
> Take possession of the remains of the deceased including
those things in possession of the deceased;
> Remove or cause the removal of the remains.
Police Powers cont…
19

> Powers also include the catch all
‘anything else reasonable necessary or
incidental to the investigation.
> Designed to preserve evidence where
it is considered necessary to do so on
reasonable grounds.
> Must be done in accordance with a
coronial scene investigation order.
> Must be done at the coronial scene.
Police Powers cont…
20

> Coroner could:
> appoint an investigator to assist in the
investigation of any matter relating to
an inquest or inquiry;
> request police assistance;
> restrict access to the investigation
scene;
> issue a search warrant; and
> Inspect and retain seized items.
Before the investigation scene
21

22
State/Territory Provision
ACT Part 5A – Coronial Investigation Scene
VIC Division 4 Powers relating to investigation:
• Restriction of access;
• Powers of entry, search, inspection and
possession;
• Owner to direct person to produce
documents, operate equipment;
• Other powers in relation to investigation
(take photos, make recordings, bring
equipment to the premises, seal a thing or
lock the premises and analyse, measure
and test).
NT S19 Powers of entry, inspection, copy
documents and possession.
TAS S34 Powers to restrict entry.
S59 Powers of entry, inspection and
possession.
S59A Power of police to secure evidence for
coroner in an emergency.

The information contained in this
presentation is intended as general
commentary and should not be regarded as
legal advice. Should you require specific
advice on the topics or areas discussed
please contact the presenter directly.
Disclaimer
24

Level 12, 469 La Trobe Street, Melbourne, VIC 3000 P: +61 3 9609 1555
Level 8, 28 University Avenue, Canberra, ACT 2601 P: +61 2 6171 9900
Liability limited by a scheme approved under Professional Standards Legislation

Changes to the ACT Coroner Act

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Editor's Notes