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Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
28
Duties of the lawyer assisting a coroner
That the duties of the lawyer assisting the Coroner be, subject to direction of the Coroner, to take responsibility, in the first instance, for ensuring that full and adequate inquiry is conducted into the cause and circumstances of the death and into such other matters as the Coroner is bound to investigate. Upon the hearing of the inquest the duties of the lawyer assisting at the inquest, whether solicitor or barrister, should be to ensure that all relevant evidence is brought to the attention of the Coroner and appropriately tested, so as to enable the Coroner to make such findings and recommendations as are appropriate to be made.
Aboriginal Justice Caucus Assessment
Recommendation 28 intended for the lawyer assisting a coroner to ensure a full and adequate inquiry, bringing all relevant evidence to the coroner's attention and ensuring it is properly tested.
Actions taken partially aligned with the intent of this recommendation. The Coroners Act 2008 (Vic) provides for lawyers to assist the coroner but provides little detail on their responsibilities. The Coroners Court Bench Book offers more guidance, outlining duties such as presenting evidence, questioning witnesses, and assisting in inquiry direction—emphasising impartiality and independence. Whether the efforts of coroner’s assistants ‘ensure a complete and adequate inquiry’ depends on their skills, experience and in the case of inquests into Aboriginal passings, their understanding of Aboriginal culture, history and community.
Caucus members noted cases where Aboriginal families had challenged submissions made by Counsel Assisting which highlighted ways in which presenting information in a particular way, can potentially undermine the adequacy of the inquiry, and limit the findings and recommendations a coroner can make.
Recommendation 28 remains relevant given its potential to help build community trust in coronial processes.
Not only is it about instilling confidence in families and the Coroners Court, but also instilling confidence in our communities, because once a person passes, you know...we all grieve for them and their families.
(Bobby Nicholls, Chairperson, Hume Regional Aboriginal Justic Advisory Committee (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
Cultural audit of training and experience
Coroners Court to conduct a cultural audit to verify individuals working with Aboriginal families have the necessary training and experience including awareness of the relevant recommendations of the Royal Commission into Aboriginal Deaths in Custody, unconscious bias and systemic and structural racism in the ‘justice’ system.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) highlighted the crucial role of lawyers in assisting coroners during inquiries into deaths in custody, particularly in gathering and presenting relevant evidence. Lawyers play a key role in ensuring thorough investigations by presenting all pertinent information and rigorously testing the evidence to uncover any potential misconduct or concealment. Their involvement helps ensure that the inquiry process is transparent and comprehensive.
Actions Taken Since Last Review
Coroners Court of Victoria
The role of a coroner’s assistant is comparable to that of counsel assisting in a Royal Commission. They help to uncover the facts by organising and presenting material clearly and conducting witness questioning on the coroner’s behalf. They may guide the direction of inquiries and assist witnesses in preparing their statements—without altering or censoring the content. They may also prepare evidence summaries, highlight relevant legal provisions and identify applicable authorities.
This division of responsibilities allows the coroner to remain impartial and focused on assessing the evidence presented.
Impact
Outputs
The Coroners Act 2008 (Vic) has a greater focus on the powers and functions of coroners in relation to inquiries into deaths in custody, than the duties of other parties. The Act outlines the types of people who could be appointed to assist the coroner but does not provide further detail on their roles and responsibilities. The Coroners Court Bench Book details the duties of the coroner’s assistant at inquest.
Outcomes
Under the Coroners Act 2008 (Vic) a coroner has a broad power to shape and direct an investigation. It is their responsibility for ensuring that a full and adequate inquiry is conducted into the cause and circumstances of the death and into such other matters as the they are bound to investigate.
The Coroners Court Bench Book details the duties of the coroner’s assistant at inquest which include questioning witnesses, directing lines of inquiry, and outlining relevant statutory provisions and may identify relevant authorities. Their role is to ensure the coroner is presented with all necessary information to make informed findings regarding the cause of death and surrounding circumstances.
While the coroner should not work with the assistant in a way that is unfair to any interested parties, the coroner must confer with the assistant on day-to-day inquest management issues, to ensure the inquest proceeds in a way that is fair, effective and efficient.
Community Views
Inquest into the passing of Tanya Day
In their submission to then Deputy State Coroner English, the children of Tanya Day raised concerns about the management of the case by the coroner’s assistant. They challenged elements of submissions made by Counsel Assisting, highlighting that the adoption of certain narratives resulted in systemic problems such as racism and bias not being adequately addressed in the investigation. Additionally, they urged the Coroner and Counsel Assisting to conduct a comprehensive review of evidence and address systemic issues more directly rather than relying on the existing arrangements with Victoria Police for coronial investigations.