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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
29
Officer in charge of police investigation to report to Coroner
That the Coroner in charge of a coronial inquiry into a death in custody have legal power to require the officer in charge of the police investigation to report to the Coroner. The Coroner should have power to give directions as to any additional steps he or she desires to be taken in the investigation.
Counsel Assisting is wrong to say the solution is “legislative recognition that the Coroner is directing the investigation”. The solution is to have a truly independent investigator for police contact deaths; not police investigating police.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 29 was aimed to empower a coroner to direct police officers in investigations, allowing them to report directly.
The inquest into the passing of Tanya Day highlighted the undefined reporting relationship between coroners and police coronial investigators. In response, the Justice Legislation Amendment Bill, introduced in 2023, sought to formalise the role of the coronial investigator.
Now, the Coroners Act 2008 (Vic), gives a coroner power to direct the coronial investigator. However, if the Chief Commissioner of Police deems the direction unreasonable or potentially obstructive to a criminal investigation, the coronial investigator is not obliged to comply. As such, the Aboriginal Justice Caucus considered that this legislative amendment falls short of fully addressing the intent of Recommendation 29.
I don’t think anyone, whether it be police or corrections, should be anything other than forthright in giving that information if the coroner asks for something…The fact the Chief Commissioner of Police can instruct an officer not to comply, that demonstrates to me that it’s a bit of a cover-up… If the officer can’t come and give their views, it’s like saying ‘I’m not going to comment on this as it might incriminate me’.
(Bobby Nicholls, Chairperson, Hume Regional Aboriginal Justice Advisory Committee)
The Aboriginal Justice Caucus echo community concerns about police investigating police where an Aboriginal person has passed in police custody. We continue to advocate for independent investigators. Implementation of Recommendation 32 is insufficient to meet community expectations of credible and impartial investigations.
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
Amend the Coroners Act 2008 (Vic)
Strengthening Section 15A (2) by adding a temporal requirement. Amend the wording to specify that the coronial investigator must comply with a reasonable and lawful direction within a reasonable timeframe.
Remove Section 15A (3)(a) so that coronial investigators must always comply with written directions from the coroner.
Establish an independent coronial investigation unit
Establish an independent investigation unit, and until it is established, create a specialised investigation team within the Coroners Court.
Explore international benchmarking models such as the Police Ombudsman for Northern Ireland to identify best practices for independent investigation units in custodial matters. Evaluate the feasibility of adapting similar models to the Victorian context to enhance investigative integrity and transparency.
Background
The Royal Commission on Aboriginal Deaths in Custody (RCIADIC) highlighted the need for strong oversight mechanisms to ensure police investigations are conducted thoroughly and without the perception of bias or conflict of interest. It criticised cases where police were empowered to investigate the action of fellow police officers and a lack of external supervision led to inadequate or flawed outcomes. The Commission pointed to inconsistencies across Australian jurisdictions, where differences in administrative structures and the powers of coroners affected the quality and uniformity of investigations. While states like Victoria had centralised systems offering clearer guidance for coroners, others operated under more fragmented and inconsistent frameworks.
Actions Taken Since Last Review
Law Reform Committee - Coroners Act 1985
In their review of the Coroners Act 1985, the Law Reform Committee (the Committee) considered that despite the ‘cooperative working relationship between police and coroners’ there was a need for coroners to have the legal authority to direct police officers in their inquiries.
A coroner cannot claim that s/he is accountable, as the chief investigator, for the standard of an inquiry when that coroner does not have the power under the Act to direct that inquiry.
The Committee were of the view that providing coroners with the power to direct police could:
- improve the timeliness and quality of police contributions to a coronial investigation
- ensure witness statements and other evidence were obtained within defined timeframes
- avoid perceived conflicts of interest in police investigations of police-related deaths, and
- improve the standard of an inquiry.
The Committee did not accept that giving a coroner the power to direct police in a coronial investigation would necessarily compromise the independence of the police in their criminal investigations. However, the Committee was of the view that, without the power to direct, a coroner’s ability to effectively investigate a death from a community safety and prevention viewpoint may be compromised.
If a police officer is only directed to examine a death for the purposes of a criminal investigation, there is the potential to overlook lines of inquiry which are critical to a coronial investigation.
Coroners Court of Victoria
In the inquest into the passing of Tanya Day, the Deputy State Coroner highlighted the absence of a defined reporting relationship between the Coroner and the Victoria Police officer assisting in the investigation, as the Coroners Act 2008 did not explicitly outline this arrangement, relying instead on conventional practices.
In response to these concerns and Recommendation 29, amendments were proposed in the Justice Legislation Amendment Bill tabled in the Victorian Parliament in August 2023. These changes aimed to provide clarity on the role of police coronial investigators in cases of reportable deaths. Previously, the duties of these investigators were primarily governed by informal agreements between the Coroners Court and Victoria Police. The Coroners Act 2008 (Vic) now provides the coroner explicit authority to direct a coronial investigator, who must adhere to all reasonable and lawful directives.
A coroner may, by written notice, direct the coronial investigator in relation to an investigation into a reportable death. The coronial investigator must comply with a reasonable and lawful direction, unless the Chief Commissioner of Police gives the State Coroner written notice that the Chief Commissioner considers the direction to be unreasonable, or that complying with the direction would likely compromise a criminal investigation.
The power to direct a coronial investigator in s 15A applies regardless of when the coronial investigator was appointed and regardless of when the coronial investigation commenced.
It is expected that the power in s 15A will rarely need to be exercised. Historically, coroners and coronial investigators have worked effectively together, with the coronial investigator collecting evidence as requested by the coroner.
Impact
Outputs
The Justice Legislation Amendment Bill was introduced to parliament in August 2023 to amend the Coroners Act 2008 in relation to the role of coronial investigator. Subsequent amendments to the Act came into effect on 10 October 2023.
A police officer who has been nominated as a coronial investigator is required under section 15A of the Coroners Act 2008 to comply with the directions of a coroner in relation to a coronial investigation into a reportable death. Section 36 of the Act requires a police officer to give relevant information to a coroner in an investigation, and section 60 provides for assistance by police officers in an inquest.
Outcomes
While Recommendation 29 was assessed as fully implemented in the 2005 Review, a coroner in charge of a coronial inquiry into a death in custody did not have ‘legal power ’ to direct the officer in charge of the police investigation.
In 2006 the Parliamentary Law Reform Committee found the absence of this power could undermine the timeliness, quality and effectiveness of a coronial inquiry:
. . .without the power to direct, a coroner’s ability to effectively investigate a death from a community safety and prevention viewpoint may be compromised.
The Committee recommended amending the Coroners Act 1985 to provide that a coroner may give a police officer directions concerning investigations to be carried out for the purposes of an inquest or inquiry. However, this did not occur when the Coroners Act 2008 (Vic) was made.
During the inquest into the passing of Tanya Day, her family raised significant concerns about the conduct of the police investigation into the treatment of their mum in police custody. Coroner English recommended that the role of the coronial investigator be recognised in legislation and the Coroners Act 2008 be amended so that the coroner in charge of a coronial investigation may give a police officer direction concerning investigations to be carried out for the purpose of an inquest or investigation into a death.
In October 2023, the Coroners Act was amended to formalise the role of the coronial investigator and to provide the coroner with an explicit power to direct the coronial investigator in relation to the investigation. The role of the coronial investigator is now defined in the Act as a police officer nominated by the Chief Commissioner of Police to assist a coroner in relation to the investigation into a reportable death. The coroner is empowered to issue a written direction to the coronial investigator, who has a duty to comply with all reasonable and lawful directions. There is a limited exception to this duty for directions that are, in the opinion of the Chief Commissioner, unreasonable or likely to compromise a criminal investigation. These legislative reforms are intended to improve the transparency and independence of the coronial system by providing a clear legislative framework around the role of the coronial investigator.
Community Views
Tanya Day's Children
The submission from Tanya Day's children highlighted several concerns regarding the performance of the coroner's investigator, concluding that:
Counsel Assisting is wrong to say the solution is “legislative recognition that the Coroner is directing the investigation”. The solution is to have a truly independent investigator for police contact deaths; not police investigating police.
Victorian Aboriginal Legal Service
In their submission regarding the proposed amendments to the Coroners Act 2008 (Vic), VALS raised three main concerns: the narrow definition of ‘coronial investigator’, the lack of a temporal requirement in Section 15A (2) for compliance with directives, and the exception in Section 15A(3)(a) allowing non-compliance with written directions deemed ’unreasonable’ by the Chief Commissioner of Police.
VALS argues that the term ‘unreasonable’ grants the Chief Commissioner broad discretion to challenge directions from the coroner, which undermines the independence of coronial investigators from Victoria Police. VALS called for further clarification on the criteria for using this exception, emphasizing the importance of ensuring independence in such investigations.
Additionally, VALS advocated for a temporal requirement to ensure prompt compliance with directives, citing the harmful effects of excessive delays in coronial processes on grieving families.
VALS emphasised the need for independent investigation processes, especially for deaths in custody and police-contact deaths, suggesting alternatives such as independent investigators based out of the Coroners Court or investigations conducted by an independent Aboriginal-led body.