Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
31
Lawyer assisting Coroner can require further investigation
That in performing the duties as lawyer assisting the Coroner in the inquiry into a death the lawyer assisting the Coroner be kept informed at all times by the officer in charge of the police investigation into the death as to the conduct of the investigation and the lawyer assisting the Coroner should be entitled to require the officer in charge of the police investigation to conduct such further investigation as may be deemed appropriate. Where dispute arises between the officer in charge of the police investigation and the lawyer assisting the Coroner as to the appropriateness of such further investigation the matter should be resolved by the Coroner.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 31 was to ensure that the lawyer assisting a coroner remains informed by the officer in charge of the police investigation about its progress and conduct, and has authority to request further inquiries, and that any disagreements are resolved by the coroner.
The Coroners Act 2008 (Vic) empowers a coroner to direct a coronial investigator in the police investigation of a reportable death. Practice Direction 6 expands the scope of investigations into Aboriginal deaths in custody and outlines requirements for a coroner to provide directions to the coronial investigator early in the process.
As coroners can direct the lawyers assisting them, it is assumed any expansion of coronial powers would similarly expand the roles and responsibilities of the lawyer assisting the coroner, however these responsibilities are not detailed in legislation, the Coroners Court Bench Book or relevant practice directions.
Further actions to implement Recommendation 31 could include defining the role of the lawyer assisting a coroner in legislation and clarifying the reporting relationship between the lawyer and police officer assisting a coroner with their investigation.
Priority for Further Work:
Low
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Clarify the role of the lawyer assisting the coroner in relation to the conduct of investigations
Include further detail in the Coroners Act 2008 (Vic) or associated guidance to clarify the responsibilities of the lawyer assisting the coroner in relation to reviewing the conduct and progress of an investigation, and the relationship between the lawyer and police coronial investigator assisting a coroner.
Background
The Royal Commission on Aboriginal Deaths in Custody highlighted the importance of the relationships between police investigators and the lawyer assisting the coroner. This ensures the lawyer stays informed, can ask for further investigation if needed, and can provide detailed and timely advice to the coroner to support their oversight of the investigation. If disagreements arise, the coroner has the final say.
Actions Taken Since Last Review
Coroners Court of Victoria
The Coroners Court is responsible for:
- Independently investigating deaths and fires.
- Reducing preventable deaths.
- Promoting public health and safety and the administration of justice.
The Coroners Court does not employ its own investigators. For reportable deaths requiring a coronial brief, a coroner relies on the Chief Commissioner of Police to appoint an officer as the coronial investigator, who acts under the coroner's direction.
The coroner has oversight of the investigation and can direct it in various ways, including:
- Directing or authorising various medical investigations
- Asking Victoria Police to gather evidence on issues the coroner thinks are important
- Using compulsory processes to obtain material or authorise searches
- Commissioning expert reports and opinions, based on the medical and police evidence
- Commissioning reports and research from within the Coroners Court on similar deaths and to evaluate claims by medical personnel that treatment was in accordance with standard medical practice
- Deciding whether an inquest is necessary.
Within the Coroners Court, the Legal Services team assists coroners with their investigations by analysing evidence, preparing draft findings, preparing matters for inquest, and appearing as Counsel Assisting the Coroner.
The lawyer assisting a coroner, often known as the Coroner's Solicitor, is responsible for supporting a coroner with their investigation into reportable deaths by providing end to end legal case management and assistance. Core functions of the role are to:
- Undertake legal research and analysis and prepare complex legal reports, briefs, and correspondence.
- Work effectively with stakeholders and agencies to obtain additional information needed to support the coronial investigation.
- Provide high quality advice on sensitive and/or complex legal issues.
Victoria Police
Victoria Police assessed Recommendation 31 as fully implemented in 2023, citing the conclusion stated in the 2018 Review that ‘the Victorian Government has incorporated Recommendation 31 into current practice, with the coroner given ultimate responsibility including over dispute resolution under the Coroners Act 2008 (Vic).’
The Homicide Squad always provides an officer to be the Coroner’s Investigator. They carry out the police investigation. The reporting relationship between the lawyer and the member of Victoria Police assisting a coroner (Coroner’s Investigator) in their investigation is undefined in the Coroners Act 2008 and proceeds on convention. Convention dictates that Victoria Police investigators follow the instructions of the coroner.
Impact
Outputs
The position description for the Coroner's Solicitor outlines that they are responsible for supporting a coroner with their investigation into reportable deaths by providing ‘end to end legal case management and assistance’. A core requirement of the role is to work effectively with stakeholders and agencies to obtain additional information needed to support the coronial investigation.
Outcomes
The Justice Legislation Amendment Act (2023) enacted changes to the Coroners Act 2008 (Vic), that contribute to the implementation of RCIADIC recommendations 29, 30 and 31 by giving coroners more power to direct the coronial investigator and the police investigation into a reportable death.
The Coroner’s Solicitor provides end to end legal case management and assistance to support a coroner with their investigation. Subject to the direction of a coroner, they work with stakeholders to obtain additional information needed to support the coronial investigation. The breadth of this function suggest that the Coroner’s Solicitor is ‘entitled to require the officer in charge of the police investigation to conduct such further investigation as may be deemed appropriate’ as outlined in Recommendation 31.
However, the Coroners Act 2008 (Vic) does not include in its definitions the Coroner’s Solicitor or Counsel Assisting the Coroner. The Coroners Court Bench Book provides greater detail on the latter, but only in terms of their responsibilities during an inquest. Clearer guidance on the reporting relationship between the lawyer and police officer assisting a coroner, could potentially assist with the conduct and timeliness of investigations.