B E N I H L E O W E N D I X O N C H A M B E R S

SECTION 57 CORONERS ACT 2008

CORONERS BILL EXPLANATORY MEMORANDUM

Section 57 “[P]rovides that a coroner may require a person to give evidence despite that evidence being incriminating. The clause also provides for the coroner to provide a certificate in respect of the evidence. The provision is based on (and consistent with) section 128 of the Evidence Act 2008.”

CORONERS ACT 2008

•    Second Reading: •  LA – 9 October 2008 •  LC – 13 November 2008

•  s 2: This Act comes into operation on 1 November 2009.

11 DECEMBER 2008

11 DECEMBER 2008… 2131 hrs:

‘[C]an I get an ambulance here immediately we have shot this male’ ‘We’re still not approaching this male, He’s still conscious and breathing. Ah, we cannot see both his hands at this stage but he has, ah, stopped resisting.’

21:31:37 3NC 303 Request Ambulance. Have shot male. 21:31:45 3NC 251 Received.

16 December 2010 (Inquest Day 24) - Sgt Collin Dods (3NC303)

Certificate Sought – Granted – Willingly Gave Evidence 1st Question XXN (senior Counsel for the Family): Q. Have you got anything to say to Tyler's family?

Yes, I do, yeah, um, I think the whole incident's a tragedy. It's a tragedy that a young man's life, well short of his prime, I think it's a tragedy that the grieving widow is now a grieving mother, um, I think it's a tragedy that Tyler didn't have the tools, if you will, to be able to cope with the situation he found himself in.

16 December 2010 (Inquest Day 24) - Sgt Collin Dods (3NC303)

But as a corollary to that, I also think it's a tragedy that me and my colleagues have to live with this. One day my girls are going to ask me if I've ever used a gun, and I don't know how I'm going to answer them.

CORONERS BILL STATEMENT OF COMPATIBILITY

•  Section 25(2)(k) of the charter:

The right ‘not to be compelled to testify against himself or herself or to confess guilt’.

However the right does not preclude the use of compulsory questioning powers for legitimate purposes in separate proceedings where a direct-use immunity is provided.

•  Re Clause 57 : “[T]he bill provides that the evidence cannot be used directly or indirectly against the person except in respect of the falsity of the evidence. Accordingly, I am of the view that this provision is compatible with section 25(2)(k) of the charter.”

CORONERS BILL SECOND READING SPEECH

Consistent with Victoria’s new approach in relation to evidence, the bill will limit the privilege against self-incrimination in circumstances where the interests of justice would be served. The witness will be provided with a certificate so that the evidence cannot be used against them in other Victorian proceedings. This will allow the coroner to more thoroughly conduct an investigation and may provide more answers for the families about what happened to their loved ones.

BACKGROUND TO S 57

•  Centuries-old Common Law privilege against self-incrimination.

•  includes a protection against compulsion to answer questions which may tend to expose one to civil or criminal penalties.

•  It is a privilege that has been said to be:

“a deep-seated fundamental common law right [which] hardly needs emphasising”

- Warren CJ in DAS v Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381 at [42].

SECTION 57

Privilege in respect of self-incrimination in other proceedings    

(1)     This section applies if a witness objects to giving evidence, or evidence on a particular matter, at an inquest on the ground that the evidence may tend to prove that 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 under an Australian law or a law of a foreign country.     (2)     The coroner must determine whether or not there are reasonable grounds for the objection. (3)     If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness—         (a)     that the witness need not give the evidence unless required by the coroner to do so under subsection (4); and         (b)     that the coroner will give a certificate under this section if—               (i)     the witness willingly gives the evidence without being required to do so under

subsection (4); or               (ii)     the witness gives the evidence after being required to do so under subsection (4); and         (c)     of the effect of such a certificate.

SECTION 57…

 (4)     The coroner may require the witness to give evidence if the coroner is satisfied that—         (a)     the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and         (b)     the interests of justice require that the witness give the evidence.   (5)     If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the coroner must cause the witness to be given a certificate under this section in respect of the evidence. (6)     The coroner is also to cause a witness to be given a certificate under this section if—         (a)     the objection has been overruled; and         (b)     after the evidence has been given, the coroner finds that there were reasonable grounds for the objection.

SECTION 57…

(7)     In any proceeding in a court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—         (a)     evidence given by a person in respect of which a certificate under this section has been given; and         (b)     any information, document or thing obtained as a direct or indirect consequence of the person having given evidence— cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. (8)     Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

INTERESTS OF JUSTICE: CURETON V BLACKSHAW SERVICES PTY LTD [2002] NSWCA 187 AT [37]

•  Dealing with 128 of the Evidence Act Sheller JA (NSW CoA)observed that the interests of justice should be “construed broadly”.

•  He concluded that they: “[W]ould permit questions to be put going to credit, particularly where credit was important and where the credit of the chief witness on the other side was to be impugned for conduct similar to that to be tested in cross-examination”.

BACKGROUND TO S 57

•  Section 57 was inserted in the Coroners Act to bring the powers of a Coroner in investigating deaths in accordance with Uniform Evidence legislation.

•  The starting point under the Coroners Act is that the traditional privilege against self-incrimination is catered for - albeit not in the traditional way.

•  It is now required to be balanced against the interests of justice.

•  The interests of justice must be informed by a consideration of all the provisions in the Coroners Act, the purposes of the Coroners Act and the important functions of the Coroners Court.

FACTORS TO CONSIDER FOR THE PURPOSES OF THIS ACT

•  s 8: When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following – a)  That the death of a family member, friend or community member is

distressing and distressed persons may require referral for professional support or other support;

b)  That unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;

c)  That different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;

d)  That family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;

e)  That there is a need to balance the public interest in protecting a living or deceased person’s personal or health information with the public interest in the legitimate use of that information;

f)  The desirability of promoting public health and safety and the administration of justice.

SECTION 67 – FINDINGS OF A CORONER INVESTIGATING A DEATH

1.  A coroner investigating a death must find, if possible— a)  the identity of the deceased; and b)  the cause of death; and c)  unless subsection (2) applies, the circumstances in which

the death occurred; and d)  any other prescribed particulars.

2.  Whether it is possible or not, a coroner need not make a finding with respect to the circumstances in which a death occurred if—

a)  an inquest into the death was not held; and b)  the coroner finds that—

i.  the deceased was not, immediately before the person died, a person placed in custody or care; and

ii.  there is no public interest to be served in making a finding regarding those circumstances.

3.  A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.

PRIEST V WEST & ANOR [2012] VSCA 327

•  When investigating a death, a Coroner must “pursue all reasonable lines of inquiry”

and the Coroners Court must act as an “independent” and “active investigator”

and “do everything possible to determine the cause and circumstances of death”.

OBJECTIVES AND PURPOSES OF THE CORONERS ACT

•  Powers under the Coroners Act need to be exercised consistently with the objectives and purposes of the Coroners Act.

•  In exercising the discretion under s57, the Coroner should be guided by the objectives in ss6 and 8 of the Coroners Act and by the obligation conferred by s67.

PRIEST V WEST & ANOR [2012] VSCA 327

•  It was Parliament’s clear intention that the Coroner

“should not be restrained” in carrying out functions under the Coroners Act and accordingly Parliament

“[H]as removed all inhibitions on the collection and consideration of material which may assist in that task”.

INTERESTS OF JUSTICE: INQUEST INTO THE DEATH OF PATRICIA (KWAI) CHAN 3226/06

•  State Coroner, Judge Coate recognised that the “interests of justice” require a balancing exercise.

•  Mr Tang (the husband of the deceased) was excused from giving evidence because - considerable amount of information in the brief in relation to Ms Chan and her deteriorating health following undergoing a dental procedure.

•  In this Inquest, there were other persons with direct knowledge available to give evidence, and therefore it was not in the interests of justice to require Mr Tang to give evidence.

INTERESTS OF JUSTICE: INQUEST INTO THE DEATH OF TANG 2010/1790

•  Deputy State Coroner West. •  [24] factors •  [29] it’s a balancing exercise; There are competing

factors •  [55] the availability of CCTV footage was a

significant factor •  It was noted that the additional risk to the witnesses

was, however, low given the nature of the protection offered by the certificate.

RICH V ATTORNEY-GENERAL (NSW) [2013] NSWCA 419

•  Concerned an inquest into a shooting. •  Rich made an application to be excused from giving evidence

submitting that it was not in the ‘interests of justice’ as he may be prosecuted •  Application under s61(4) of the Coroners Act 2009 (NSW) (the equivalent of s57(4) of

the Coroners Act)

•  The Coroner required Rich to give evidence, determining that it was in the public interest that he do so.

•  Rich unsuccessfully sought judicial review – prejudice in Lee, X7 sense

•  NSW CoA held, “[Section] 61 requires that prejudice to be weighed in the balance of the interests of justice favouring obtaining the evidence. The premise of the section is that a witness is exposed to a risk, in which case, s 61(4) obliges the Coroner to undertake an evaluative assessment of the interests of justice.”

INTERESTS OF JUSTICE: INQUEST INTO THE DEATHS OF TERRENCE AND CHRISTINE

HODSON

Ruling delivered 22 July 2014 •  Dale and Collins excused from giving evidence

•  Coroner found that “interests of justice” as he determined them to be did not “require” that they give evidence.

•  Well reasoned decision delivered

•  Basis for applications (privilege against self incrimination) conceded

•  All parties agreed - “interests of justice” test to be informed by reference to the coroners Act 2008, it s provisions and purposes.

INTERESTS OF JUSTICE: INQUEST INTO THE DEATHS OF TERRENCE AND CHRISTINE

HODSON….

Ruling delivered 22 July 2014 •  pursuant to the terms of the Act, an order to testify over

properly based objection only arises where the interests of justice “require” it

•  [36] No previous case where someone compelled after

being charged with murder and the “long standing approach” of nor calling persons charged with serious offences. •  Whether long-standing practice (pre 2008 Act) a relevant

consideration?

INTERESTS OF JUSTICE: INQUEST INTO THE DEATHS OF TERRENCE AND CHRISTINE

HODSON….

Ruling delivered 22 July 2014

•  [40] Citation of the LRC Report re Coroners Bill

“the focus of the abrogation of the privilege was to establish the facts surrounding a persons death and to make recommendations to prevent future deaths … it may not be justified where there was no longer an immediate need to prevent danger” Apparent primacy to Coroner’s preventative role.

INTERESTS OF JUSTICE: INQUEST INTO THE DEATHS OF TERRENCE AND CHRISTINE

HODSON….

•  Coroner identified 7 main factors [41]: (a) Character and Nature of deaths (b) Evidence from other witnesses (c) Other evidence D & C have provided (d) Other means of obtaining the evidence (e) Significance of D & C evidence in the context of the Act (f) The nature and extent of the risk to D & C (g) Seriousness of potential charges.

Balanced against it is the “requirement for me to pursue all reasonable lines of enquiry” [96]

SO WHAT DOES THIS MEAN FOR YOU?

•  Although “interests of justice” will depend on unique facts and circumstances of case.

•  Appears: •  The more serious the potential charge the less likely the “interest of

justice” will be balanced to compel over objection: Chan, Hodson. •  Public service witnesses: may tip balance the other way: Rich.

•  Consider both as shield: Cassidy, Medical Negligence Cases •  And as sword: Hodson

•  Advice to clients •  Aware of the protections and compulsions

RELEVANT CONSIDERATIONS

•  Advice to clients •  Aware of the protections and compulsions

•  The nature of cross-examination •  the form of questions which may be asked (e.g. leading questions)

•  Differs from questions which may be permitted as part of investigation into alleged breaches of of the criminal law, or in investigation to which civil penalties may result.

•  Where such matters are within the envisaged scope of the Inquest, cross-examination on these issues is anticipated.

•  To allow for the possibility that answers given, under public cross-examination to be later used, results in a patent unfairness.

RELEVANT CONSIDERATIONS

•  Incrimination: •  s 57: “an offence” •  A penalty

•  Offence – broader than statutory rights: e.g. Crimes act 1958 re Indictable/Summary dichotomy

RELEVANT CONSIDERATIONS

•  “A civil penalty” •  Cf Statutory v contractual bases

•  Disciplinary proceedings •  Re a police officer are encapsulated within the notion of “civil

penalty” as envisaged by s 57(1) of the Act: Police Services Board v Morris (1985) 156 CLR 397, per Gibbs CJ, Brennan and Dawson JJ at 403.

•  Re teachers: Inquest touching upon the death of Russell

Gordon Frik (Coroners Court of Victoria, Case No 1434/2008) per State Coroner, Judge Coate, 4 November 2011 at [8].

•  Look to range of sanctions availble.

REVIEW?

•  Possible – Judicial Review •  See, e.g. Rich

•  Decision based on “interests of justice” – involves discretionary weighting of considerations.

•  Difficult to overturn on judicial review.

•  So, important to argue to put best foot forward at first instance.

THANK YOU BENIHLE@VICBAR.COM.AU