Thursday 3 January 2019

Recent amendments to the Coroners Act

The Justice Legislation Miscellaneous Amendment Act 2018 (Vic) (the Amendment Act) received Royal Assent on 25 September 2018.  As well as amending a number of justice-related Acts to "improve the law, reduce delay and protect victims", [1] the Amendment Act makes critical revisions to the Coroners Act 2008 (Vic) (2008 Act) to:

  • allow certain persons to apply to the Coroners Court of Victoria (the Court) for an amendment to the wording of a decision made by a coroner or the Court, without re-opening the death investigation; and
  • make it clearer that a person has the legislative option to have, under the Coroners Act 1958 (1958 Act), the Coroners Act 1985 (1985 Act) and the 2008 Act, findings set aside regardless of whether the investigation is re-opened, provided the Court is satisfied that there are new facts and circumstances that make it appropriate to do so.

The changes are in response to the Coronial Council Appeals Review which examined the review and appeal rights under the 2008 Act.

Section 76A - Amending the wording of a decision

The Amendment Act now enables, within three months after a decision is made, the following categories of people to apply to the Court for an Order to amend the wording of a decision made by a coroner or the Court in relation to a death investigation:

  • senior next of kin of a deceased person; or
  • an interested party in relation to an inquest in respect of the death; or
  • any other person that the Court is satisfied:
    • has a sufficient interest in the investigation; and 
    • that it is appropriate to be granted leave to make the application.

The new provision allows for an Order that the wording of the decision be amended if the following criteria is satisfied:

  • the amendment would not be inconsistent with a finding, under section 67(1) of the 2008 Act, in relation to the investigation to which the decision relates;
  • the amendment would not require the investigation to be re-opened;
  • the amendment does not appear to be prejudicial to a person (other than the applicant) who is an interested party in relation to an inquest in respect of the death; and
  • the amendment is appropriate in all the circumstances.

It is envisaged that this provision will allow for corrections of a mistake or removal of inappropriate comments, provided they do not change the substance of the finding.

An Order for amendment to the wording of a decision must be made by the coroner who conducted the original investigation unless that coroner no longer holds the office of coroner; or there are special circumstances as to why they cannot determine the application.

Prior to the Amendment Act, there was no legal power for a coroner to amend the wording of a decision or findings that they had made. The only legislative options available were:

  • for a person with a sufficient interest in the investigation to lodge an appeal, in the Supreme Court, against the findings of the coroner; or
  • for a person to lodge an appeal against a refusal by a coroner to re-open an investigation.

The new provision now allows for amendments to be made to a finding that are not captured by the slip rule in section 76 of the 2008 Act (which allows for the correction of accidental slips or omissions, or other clerical mistakes).

The Supreme Court matter of Hecht v Coroners Court of Victoria [2016] VSC 635 highlighted the need for this amendment.  This case involved an application by the deceased's parents to amend two impugned paragraphs of the coroner's findings which they maintained were adverse to the reputation of their deceased daughter.  Prior to the appeal, the parents made an application to the Court to re-open the investigation into their daughter's death and have the impugned findings set aside.  The parents' application was refused and they subsequently lodged an appeal in the Supreme Court.

Prior to the Supreme Court hearing, the parties reached agreement as to the disposition of the appeal to delete the two impugned findings. However, the Associate Justice declined to make the orders as his Honour was concerned there was no legislative basis for such an agreement.

Section 77 - Clarifying the provisions in relation to re-opening an investigation or setting aside a finding

When the 2008 Act originally came into force, it was commended for broadening appeal and review rights of families, better facilitating appeals to the Supreme Court, and permitting the Court to re-open investigations into a death regardless of whether a formal inquest was held.

Many of the fundamental changes were drawn from the work of the Victorian Parliament Law Reform Committee (VPLRC).  The VPLRC conducted a comprehensive analysis of the coronial system, as it existed under the 1985 Act.[2]

Despite the laudable aims of the 2008 Act, ambiguous wording of section 77 of the 2008 Act and the transitional provisions created a jurisdictional hurdle for parties seeking to re-open a historical investigation and set aside any findings which occurred prior to the commencement of the 2008 Act.  This was despite potentially critical new evidence concerning a death coming to light post commencement of the 2008 Act.

Judicial consideration

In early 2018, the State Coroner, Judge Sara Hinchey, was called upon to consider the above ambiguity, and consider her jurisdiction to re-open historical investigations for the purpose of setting aside certain findings.

Prior to the State Coroner reaching a conclusion on this point, the interpretation of section 77 of the 2008 Act was the subject of proceedings brought in the Supreme Court before his Honour Justice Niall.  Representatives for families of deceased persons argued that the 2008 Act was designed to enhance, not restrict, families' access to the coronial system and as such it could not have been Parliament's intention that section 77 not operate retrospectively.[3]

In the course of parties waiting for judgment in this matter, and as a response to a 2017 Coronial Council of Victoria Appeals Reference Report,[4] then Attorney-General Martin Pakula announced proposed changes to the 2008 Act to clarify the ambiguity.

What was the ambiguity?

The 2008 Act introduced a provision which allowed a person to apply to the Court for an order to re-open an investigation and set aside the findings of a coroner.  This was a broader right than what existed under the 1985 Act, which only allowed the State Coroner to revisit inquests, rather than investigations.[5]  However, 'findings of a coroner' and 'investigation' were not defined in the 2008 Act.  As such, it was unclear from the face of the legislation whether findings could be set aside, or an investigation could be re-opened, in circumstances where that investigation occurred under a predecessor act. 

In addition, the wording of section 77 created ambiguity as it only provided that some or all of the findings be set aside and that an investigation could only be re-opened if considered appropriate.

The Amendment Act now makes it clearer that a person has the legislative option to have (regardless of whether the findings were made under 1958 Act, the 1985 Act or the 2008 Act) findings set aside regardless of whether the investigation is re-opened, provided the Court is satisfied that there are new facts and circumstances that make it appropriate to do so.

Also of note are that the terms 'findings of a coroner' and 'investigation' are now defined in the 2008 Act.

Any investigations which are re-opened under this section will be conducted as if they are investigations under the 2008 Act.  The Amendment Act also extends the time limit for lodging an appeal against a refusal by the Coroners Court to re-open an investigation from 28 days to three months.

The Amendment Act also provides that the Attorney-General must cause a review, for the purpose of assessing the operation and effectiveness of amendments, to be conducted within three years of the amendments commencing.

For further information on the amendments and their implications please contact:

Jodie Burns
Managing Principal Solicitor
9032 3012

Laura Elliott
8684 0134

[1] Victoria, Parliamentary Debates, Legislative Council, 26 July 2018, 3401-02 (Jenny Mikakos, Minister for Families and Children).

[2] Law Reform Committee, Parliament of Victoria, Coroners Act 1985 (2006).

[3] Justice Niall had previously ruled that parties could not bring their applications under the repealed 1958 and 1985 Acts: See James v Mason [2018] VSC 170 and Spear v Hallenstein [2018] VSC 169.

[4] Coronial Council of Victoria, Coronial Council Appeals Review - Reference 4 (2017).

[5] See Coroners Act 1985 (Vic) s 59A.

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