People of the court

The Coroner

Under the Act, all magistrates are coroners (s 3). The Governor also has the power to appoint any person as a coroner (s 10), but in practice it is almost exclusively magistrates who hold this office. In recent times, specific magistrates have been allocated exclusively or primarily coronial duties. This is to aid consistency, ensure that coroners are experienced and allow them to develop expertise in specific areas of investigation (such as deaths involving medical settings or the deaths of infants). As coroners cannot become experts in all possible areas of coronial investigation, they rely on expert reports and opinions provided by others to guide them in the exercise of their powers.

There are full-time and part-time coroners discharging coronial duties. A full-time coroner heads the jurisdiction and is the delegate of the Chief Magistrate for many aspects of the legislation (ss 7 & 9). The Administrator of Courts holds the role of the Chief Clerk (Coronial Division), as described by section 14 of the Act. The coroners’ office (and state-wide Coronial Division) is managed and co-ordinated by a senior court officer.

There is only one coroner for each inquest and that coroner sits alone on the bench, without a jury (s 6). Unlike the role of a judge (as adjudicator) in adversarial proceedings, a coroner is an investigator in their own right. The coroner makes decisions about the nature and direction of investigations, and requests additional reports or statements if more information is required. Some decisions made by coroners are subject to review and all coronial findings can be the subject of appeal to the Supreme Court.

The functions of the coroner are:

• administrative
• investigative
• judicial
• preventative
• educative.

A coroner has jurisdiction to investigate a death if it appears to the coroner that the death is, or may be, a reportable death (s 21(1)). The Chief Magistrate or their delegate ensures that all reportable deaths are investigated. The aims of any coronial investigation into a death are to find the following (s 28(1)(a-e):

1. the identity of the deceased; and
2. how death occurred; and
3. the cause of death; and
4. when and where death occurred; and
5. the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1999.

In the case of a fire or explosion, the aims of the investigation are to determine the cause and origin of the fire or explosion, and the identity of any person who contributed to the fire or explosion (s 45(1)).

Coroners also have secondary goals. They seek to protect the public by making recommendations to reduce the incidence of similar deaths, fires or explosions in the future. They aim to further the administration of justice by bringing information to light that may otherwise have remained unknown or unchallenged.

If the mandatory inquest provisions of the Act are triggered, or if the coroner considers it desirable to do so, they will hold an inquest. An inquest is a formal court hearing, where the coroner can compel relevant witnesses to attend and give evidence. Only approximately three per cent of investigations proceed to an inquest.

When a person in the care or custody of a government official dies, justice must be done and be seen to be done. In this regard, the inquest is a public forum where those who may have contributed to deaths are called to account for their actions. The requirement for those in public office to explain deaths in care and custody is essential to government transparency and accountability.

Some of the powers of a coroner are to:

• enter a place and inspect it and anything in it (s 59(1)(a))
• take a copy of any relevant document (s 59(1)(b))
• take possession of an article, substance or thing (s 59(1)(c))
• have legal care, custody and control of any article, substance or thing they take possession of (s 59(7))
• authorise a police officer to do any of the things listed above on their behalf
• restrict access to a place where death occurred (s 34(1)).

Some of the coroner’s powers at inquest (s 53) are to:

• summons a person to give evidence or provide any document or other materials
• inspect, copy and keep any thing so produced
• order a witness to take an oath or an affirmation
• compel witnesses to answer questions
• give any other directions or do any other things they think necessary
• issue a warrant for someone who disobeys a summons, and upon their arrest:

• commit the person to prison until they can give their evidence
• admit the person to bail
• order the person to appear at the inquest.

Coroners’ associates

Coroners’ associates are appointed by the Chief Magistrate and may be police officers (s 15(2)) or members of the state public service (s 15(1)).

The role of coroners’ associates is to assist the coroner in investigations by receiving and co-ordinating information, providing quality assurance of investigations, and liaising with families, police, funeral directors, forensics professionals and other key parties to the proceedings. Coroners’ associates maintain an ongoing relationship with the families of deceased persons, offering support and detailed explanations of the coronial process. They also ensure the efficient conduct of the administrative processes that underpin coronial investigations.

The investigation of a death may involve many different State and Commonwealth government agencies, companies and individuals. A high level of co-ordination is required to manage and oversee all the different aspects of the investigation process. Gathering information from the various sources and providing it to the coroner in a clear and comprehensible manner is a task most often conducted by coroners’ associates.

The powers conferred by the Act upon coroners’ associates are to (s 15(4)):

• receive information on behalf of the coroner
• administer oaths and affirmations, and take affidavits.

issue summonses requiring witnesses to attend inquests, to give oral evidence or to produce documents or other materials.

Police/Coroner's Officers

All police officers are also coroners’ officers (s 16(2)). Their role in the coronial process is to investigate deaths, fires and explosions and gather evidence to assist the coroner in making findings of fact. Police are heavily involved in all investigations. The Tasmania Fire Service provides vital extra investigation services in cases of fire or explosion (refer to Other key organisations

The police play an essential role in the coronial process. They notify the coroner of reportable deaths, undertake the investigation and give evidence in inquests that assists the coroner to make findings of fact. Unlike in criminal matters, police are not involved in the prosecution of coronial matters and they do not conduct their investigation to try to prove that events occurred a certain way. Instead, they simply gather evidence for the coroner to use, making sure that the coroner has as much evidence as possible to make the most accurate and complete findings that they can.

During the early stages of the investigation, police often take control of the scene of the death, explosion or fire, and control the flow of personnel and evidence in the area. They will take possession of any document, substance or thing that is relevant to the inquiry on behalf of the coroner (s 59A(1)). They may ask someone who knew the deceased person to identify them at the scene and take affidavits from witnesses and other relevant parties. Tasmania Police guidelines stipulate the use of NAATI (National Accreditation Authority for Translators and Interpreters Ltd) accredited / recognised interpreters if available. It is appropriate for a legal representative to insist on an accredited interpreter for their client if one is required.

All Tasmanian police officers have completed equity and diversity education and training, and will accommodate the needs of people with disability and people with complex communication needs wherever possible (including the use of a contact advocate and / or support person).

The police prepare an ‘investigation file’, which contains key documents that the coroner relies upon when establishing the identity of the deceased person. The file also contains medical reports, photographs and witness statements and all the other evidence police have gathered in the course of the investigation.

Coroners’ associates co-ordinate the investigations conducted by police on behalf of the coroner. The associates consult with the coroner, follow up any further information and direct police to any areas that require a more detailed examination. All police officers assigned primarily coronial duties are part of Tasmania Police’s Coronial Services Unit.

Tasmania Police also have a number of specialist task forces and units that assist the coroner where appropriate. These include the Tasmania Police Missing Persons Unit, Drug Squad, Firearms Services, Crash Investigation Services and Forensic Services.

The functions and powers conferred on police officers in the role of coroners’ officers are to (s 16 and s 59A):

• assist the coroner to carry out their duties
• carry out all reasonable directions of a coroner
• administer an oath or an affirmation
• take an affidavit
• take possession of an article, substance or thing that is at the scene, which the officer reasonably believes is likely to have evidentiary value in a coroner’s investigation
• enter and inspect a place to secure such an article, substance or thing (if there is a danger that the article, substance or thing could be lost, concealed or destroyed, or its evidentiary value could be ruined or compromised, if it is not secured immediately)

Counsel assisting the Coroner

A coroner can be assisted during inquests by a ‘counsel assisting’. The counsel assisting the coroner is an independent government or private legal practitioner, who is appointed to help the coroner to organise and run the inquest. Unlike the coroners’ associates (who are often police officers and deal more with the investigation and the practical aspects of the inquest) a counsel assisting’s role is mostly legal. They examine the evidence and guide the coroner through it, aiding the coroner’s deliberations. Counsel assisting may advise upon and conduct further investigation as necessary, conduct research into relevant areas of the law or advise the coroner on appropriate recommendations. The coroner will seek further direction from counsel assisting if they require more information on an issue. The role of counsel assisting is not at an end until the findings have been handed down.

Counsel assisting may speak with families, friends and witnesses before the inquest to help them to understand the process and find out if there is anything else that they wish to raise. It is important that they develop good communication with families through the inquest. Counsel assisting has their pivotal role in the courtroom, in making submissions, calling witnesses and asking questions on the coroner’s behalf. They may also ask questions on behalf of the families and friends of the deceased person if they are not represented, or if those persons feel uncomfortable speaking in court. It is expected that the counsel assisting will provide information and perform their duties in a fair, unbiased and impartial manner.

In less complex matters, a coroner’s associate may act in the role of counsel assisting.

It is important to note that it is not the counsel assisting’s role to “prove” anything or to represent the deceased person or their families; the role is completely independent. It is to assist the coroner by ensuring that the relevant evidence is put before the Court in an efficient, clear and logical manner in order that the coroner can make the requisite determinations under section 28 of the Act.

The Coroners Act 1995 (Tas) does not detail the duties and powers of counsel assisting. It does state that a coroner may be assisted by counsel or such other persons as the coroner determines, and may request that the Director of Public Prosecutions provide counsel to assist the coroner at inquest (ss 53(2) & 53(3)).

The functions of counsel assisting include:

• the active pursuit of the truth and the attainment of justice (R v Doogan [2005] ACTSC 74 per Higgins CJ, Crispin and Bennett JJ at [162])
• reviewing the investigation conducted by police
• advising the coroner of any further investigation necessary and taking steps to ensure those avenues are investigated
• identifying the issues and scope of the inquest
• identifying persons of interest and relevant witnesses
• appearing at the case management conferences
• conferring with interested parties regarding the scope of the inquest, disclosure of documents and the exhibit list
• identifying possibilities or tentative conclusions relating to matters in s 28 of the Act
• testing evidence with a view to confirming or discounting those hypotheses
• assisting the coroner with reviewing evidence by providing clarification and discussion of the evidence for the purpose of findings and discussing any other matters arising before findings, such as new evidence.

The role of counsel assisting shares some similarities with prosecuting counsel.  Such similarities include:

• determining which witnesses are to be called and determining the order in which they are to be called, although ultimately which witnesses are to be called is determined by the coroner
• leading witnesses in a manner that enables them to provide their narrative of events
• making final submissions to the coroner regarding the conclusions open from the evidence, the quality of the evidence and the findings that are open, including the ability to assertively submit for a particular conclusion
• the overriding duty of fairness and the goal of achieving justice (R v Doogan [2005] ACTSC 74 per Higgins CJ, Crispin and Bennett JJ at [162]).

However, there are some significant differences between counsel assisting and prosecuting counsel, which include:

• The role of counsel assisting is not to prove a case, but rather to investigate the circumstances of death, and provide findings that can be made in respect of the death.
• The role of counsel assisting may involve a greater deal of flexibility in the approach to the evidence, as the matters in issue may change, and new evidence may become available at any stage of the inquest.
• Unlike in adversarial litigation, counsel assisting meet and have discussions with the coroner throughout the course of the investigation and inquest (Re Kotan Holdings Pty Ltd; Big Rock Pty Ltd and Colin Saul Rockman v Trade Practices Commission [1991] FCA 273 per French J at [8]).
• Counsel assisting cannot make submissions to the effect that a person has committed a crime (R v Tennent; Ex parte Jager [2000] TASSC 64 per Cox CJ at [7] and [12]).
• Proof of facts is on the balance of probabilities.
• The Evidence Act 2001 does not bind counsel assisting, as the rules of evidence do not apply to coronial inquests (s 51 of the Act).

Administrative Officers

Administrative officers manage the administrative aspects of the coroner’s court, including the in-court aspects of an inquest (as court clerks). Their duties are variable depending on their primary role and on the needs of the coroner’s court at the time.

Some of the duties and functions of administrative officers are:

(in court duties / functions)

• electronically recording the proceedings
• assisting with the management of exhibits
• keeping the coroners’ diary including scheduling inquests and other court proceedings
• administering the oath or affirmation to witnesses.

(out of court duties / functions)

• writing correspondence of the Coronial Division
• liaising with the coroners to schedule meetings, inquests and preliminary court proceedings such as case management conferences
• managing files
• fielding general enquiries (through phone and email)
• proofreading findings and other documents produced by the coroners
• organising files for disclosure and viewing
• uploading findings to the web for public access
• coding cases onto the National Coronial Information System (NCIS) database; this information is used as a resource for coroners, researchers and to provide data for ABS statistics
• collecting information and statistics on coronial matters
• culling and archiving closed files
• organising interpreters, security guards and other parties as required for court proceedings
• organising assistance for those with diverse needs

Medical Researchers

Two part-time medical researchers work with the coroner who specialises in medico-legal investigations: a specialist medical advisor and a clinical research nurse. In medical setting deaths, the clinical and surgical questions that arise are often of a highly specialised nature. Having in-house medical experts to assist the coroner aids accuracy and efficiency in findings.

The duties of these researchers include:

• assessing medical reports, doctor’s statements, scans and test results
• researching the clinically accepted risks associated with particular conditions and procedures
• reviewing treatment given and related outcomes
• reviewing the standard of care provided and the procedures of relevant medical institutions
• assessing whether particular outcomes were reasonably expected, foreseeable or unavoidable in the circumstances of each case
• providing medical reports to coroners.