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36
Thoroughness of investigations into deaths in custody
Investigations into deaths in custody should be structured to provide a thorough evidentiary base for consideration by the Coroner on inquest into the cause and circumstances of the death and the quality of the care, treatment and supervision of the deceased prior to death.
Aboriginal Justice Caucus Assessment
Recommendation 36 aimed to establish structured investigations into deaths in custody, ensuring thorough inquiries into the cause and circumstances of death, as well as the quality of care, treatment, and supervision provided before death.
A coroner investigating a death must find, if possible, the identity of the deceased, cause of death, circumstances in which the death occurred and any other prescribed particulars. A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.
The Coroners Act 2008 (Vic) does not require a more extensive investigation for deaths in custody than for other deaths. However, Practice Direction 6 requires the investigating coroner to consider, when investigating the circumstances of the death of an Aboriginal person in custody, the quality of care, treatment, and supervision of the deceased prior to death. This will entail making specific directions to the appointed coroner’s investigator to provide a comprehensive coronial brief that includes statements from persons that can give evidence in relation to these factors. The extent of the investigation is subject to the discretion of individual coroners, who are not obligated to explore beyond the immediate circumstances of death and its location.
In the Inquest into the Passing of Veronica Nelson, Coroner McGregor emphasised that the Charter of Human Rights and Responsibilities Act 2006 (Vic) obligates coroners to examine deaths rigorously. This includes scrutinising the actions of state agents and the circumstances surrounding the death to identify potential human rights violations.
Under previous legislation, the focus was on 'how death occurred,' leading to a narrow approach. The Coroners Act 2008 reinforced a broader perspective, requiring coroners to identify facts and actions causally related to the death, including identifying contributors. However, coroners are required to keep investigations within reasonable limits, focusing on relevant circumstances rather than the deceased's entire life or sociological factors, adhering to the principle of remoteness to ensure statutory findings.
‘Reasonable limits’ are determined by individual coroners upon consideration of legal requests relating to the scope of inquest.
I think we, the Justice Caucus, need to look at the Coroner’s Act and scrutinise it. . . pull it apart, and push the boundaries to seek change… We haven't been at the table when they've written this stuff, so I think it's incumbent on us to scrutinise it.
(Lawrence Moser, Chairperson, Eastern Metro RAJAC)
Community concerns persist around issues like systemic racism, that are rarely addressed in investigations.
Look at the recommendations that have been put forward by the Coroner, very few of them have been implemented by the agencies that have responsibility for it.
(Lawrence Moser, Chairperson, EM RAJAC)
Priority for Further Work:
Moderate
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
Review of the Coroners Act 2008
Ensure a comprehensive review of the Coroners Act 2008 that seeks to strengthen it in terms of recognising and reflecting Aboriginal human, cultural and other rights in the conduct of coronial processes.
Amend the Coroners Act 2008
(in line with AJC endorsed actions for RCIADIC Recommendations 5-40)
Dedicated resources in Coronial Prevention Unit to collect data on systemic racism
Creation of a sub-unit within the Coronial Prevention Unit to collect data on systemic racism to support its inclusion in the scope of coronial investigations.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the need for greater investigative processes surrounding deaths that occur in custody. The RCIADIC shed light on significant shortcomings in various police investigations, particularly highlighting cases where the focus was narrowly confined to determining the cause of death without adequately examining broader systemic issues. The Commission underlined the importance of moving beyond a mere search for criminal misconduct, urging an extended approach that scrutinised the care, treatment, and supervision of individuals inside and outside of custodial settings leading up to their death. This perspective sought to rectify recurring problems identified by the RCIADIC, including biases, inadequate consideration of systemic failures, and a lack of attention to broader contextual and systemic factors.
Actions Taken Since Last Review
Coroners Court of Victoria
The Coroners Act 2008 (Vic) provides the legal framework and requirements that guide the conduct of coronial investigations into deaths in custody. In 2020 the State Coroner issued Practice Direction 6 – Indigenous Deaths in Custody (Practice Direction 6) which outlines the expectation that the investigating coroner will consider, when investigating the death of an Aboriginal person in custody, the quality of their care, treatment and supervision.
Victorian Institute of Forensic Medicine
Since its establishment in 1985, the Victorian Institute of Forensic Medicine (VIFM) has served the State Coroner and the justice system with forensic services. The objectives of VIFM include overseeing and coordinating the provision of forensic services in Victoria, assisting the Coroners Court with its functions under the Coroners Act 2008, contributing to public health and safety, the administration of justice and reducing the number of preventable deaths.
The new Victorian Institute of Forensic Medicine Act 2024 (Vic) promotes Aboriginal cultural rights by providing that in performing a function or exercising a power, a person should have regard, as far as possible in the circumstances, to respecting the cultural beliefs of persons affected by the events to which the Institute’s services relate, and to recognising the diverse needs of Aboriginal communities, including the importance of self-determination and connection to culture, family, community and Country.
Victoria Police
In 2023 Victoria Police assessed this recommendation as fully implemented, and advised:
- The 1994 Victorian Implementation Report noted that the Homicide Squad and Internal Investigations Department (now called Professional Standards Command) had standard operating procedures, which addressed this recommendation.
- Victoria Police Manual (VPM) policies provide sufficient guidance in the investigation of coronial matters within the investigation.
Crime Command and Professional Standards Command rely on several parts of the VPM to address these issues:
- VPM - Policy Rules: Persons in police care or custody
- VPM - Guidelines: Safe management of persons in police care or custody
- VPM - Deceased Persons
- VPM - Death or serious injury/illness incidents involving police.
Read in conjunction with each other, they cover the elements in Recommendation 36.
Impact
Outputs
The Coroners Act 2008 (Vic) provides the legal framework for coronial investigations, including those involving deaths in custody. The Act outlines requirements of coroners when investigating reportable deaths, obtaining assistance from police, and determining the circumstances of death.
Practice Direction 6 (2020) aims to improve investigations of Aboriginal deaths in custody and ensure that investigating coroners consider the quality of care, treatment, and supervision before death and that the coroner’s police investigator provides a thorough coronial brief.
Victoria Police implemented various policies within the Victoria Police Manual (VPM), including guidelines for managing incidents involving deaths in custody, ensuring that the necessary investigators and support services are involved in such cases.
Outcomes
The Victorian Aboriginal Legal Service (VALS) found there were inconsistent outcomes from coronial investigations of Aboriginal deaths in custody. Families can struggle to obtain basic information about how their loved ones died, with critical details sometimes missing from initial coronial briefs. For example, in Veronica Nelson's case, a crucial statement from a nurse was only provided two weeks before the hearing despite being essential to the inquest.
Coronial investigations were perceived to be less thorough than homicide investigations, with police handling them in a way that often fails to uncover critical information. VALS must frequently push for broader investigations, highlighting systemic racism and other crucial issues that might otherwise be overlooked. Limited funding for expert witnesses at the Coroners Court means that VALS often has to fund experts to ensure comprehensive analysis, further indicating gaps in the system's ability to deliver thorough investigations in the absence of external advocacy on behalf of affected families.
Community Views
Victorian Aboriginal Legal Service
VALS emphasised the importance of acknowledging Australia's colonial history and its ongoing impact on current legal structures, which often fail to deliver justice for Aboriginal people. This colonial legacy, characterised by violence, dispossession, and denial of sovereignty, continues through contemporary policies. VALS urged the Coroners Court of Victoria to recognise this history by acknowledging that these aspects are vital for guiding necessary reforms toward an equitable legal system.
VALS highlighted that the Tanya Day Inquest is the only coronial inquest in Australia that has explicitly considered systemic racism, finding that unconscious bias influenced the V/Line train conductor's decisions. In Raymond Noel's inquest, while systemic racism was not directly investigated, Coroner Olle acknowledged the disproportionate impact of police pursuits on Aboriginal people and the adverse interactions with police that many Aboriginal individuals experience.
VALS acknowledged that Practice Direction 6 of 2020 expanded the scope of coronial inquests involving Aboriginal individuals in custody by requiring consideration of the quality of their care, treatment, and supervision prior to death. However, VALS and the families it represents believe that the role of systemic racism should also be explicitly included in these investigations to ensure comprehensive examination of causes and circumstances of death.
Consequently, VALS recommended enhancing the efficiency and effectiveness of the coronial inquest process to maximise its preventative benefits, such as preventing future tragedies by implementing inquest recommendations. They also suggested amending Practice Direction 6 of 2020 to allow investigating coroners to consider systemic racism or racial bias if requested by the family and to be open to expert evidence on these issues. Additionally, VALS proposed the creation of a sub-unit within the Coronial Prevention Unit to collect data on systemic racism.