Coroners Bill EXPLANATORY MEMORANDUM

Transcription

1 Coroners Bill EXPLANATORY MEMORANDUM Purpose of Bill The purpose of this Bill is toestablish the office of State Coroner. require the reporting of certain deaths. set out the procedures for investigations and inquests by coroners into deaths and fires. The Bill also clarifies and codifies the powers and duties of coroners which are currently contained in an ill-defined mix of statute and common law. The Bill repeals the Coroners Act 1958 and abolishes the common law rules concerning coroners and coroner's courts. Office o/state Coroner The Bill provides for a State Coroner who will head the new coronial system. The State Coroner will be independent of the judiciary. He or she will oversee and co-ordinate the coronial system and coronial services. Report ing o/deaths The Bill describes the circumstances in which a death must be reported to a coroner. Deaths which must be reported includeunexpected, unnatural and violent deaths. deaths which occur during or as a result of an anaesthetic. deaths of persons held in care. deaths of persons whose identity is unknown. This will assist in the detection of dangers to health and secret homicides. Procedures/or Inl'estigations and Inquests The Bill empowers coroners to hold investigations and inquests into certain deaths and fires and sets out procedures for conducting investigations and inquests. Whilst an investigation is informal, an inquest is a hearing at which witnesses may be called to give evidence. An inquest may be held with ajury. A coroner investigating a death must find, if possiblethe identity of the deceased. how death occurred. the cause of death. the particulars needed to register the death. the identity of any person who contributed to the cause of death. A coroner may order that an autopsy be performed. An autopsy may only be performed by a pathologist or a doctor under a pathologist's supervision. 1-[118J-850/ /85-(Revision No. 4) (921)

2 Repeals and amendments Consequential amendments to other Acts are contained in Part 9. The Coroners Act 1958 is repealed. Clause I is a purpose clause. NOTES ON CLAUSES PART I-PRELIMINARY Clause 2 is the commencement provision. Clause 3 defines terms used in the Bill. Clause 4 abolishes the common law rules affecting coroners and coroner's courts. Clause 5 provides that the Coroners Act 1958 still applies to deaths and fires reported to a coroner before the commencement of this Clause. Clause 6- PART 2-CORONERS Sub-clause (I) provides for the appointment of a State Coroner and a Deputy State Coroner by the Governor in Council. Sub-clause (2) provides that such an appointment does not affect the tenure of a judge or a stipendiary magistrate or any right or privilege of a judge. Sub-clause (3) provides that service by a judge as State Coroner or Deputy State Coroner will count as service as a judge of the County Court. Sub-clause (4) provides that the Deputy State Coroner is to act as State Coroner when the State Coroner is absent or the office is vacant. Clause 7 specifies the functions of the State Coroner. Primarily the State Coroner will oversee and co-ordinate the efficient operation of the coronial system and the provision of coronial services. Clause 8 provides for the appointment of coroners by the Governor in Council. Clause 9 states the conditions of office of coroners. Clause 10 permits delegation of coroner's powers to coroner's clerks. PART 3-CORONER'S CLERKS Clause 11 provides for the appointment of coroner's clerks, and for clerks and deputy clerks of Magistrates' Courts to act as Coroner's Clerks. Clause 12 sets out the functions of coroner's clerks. Clause 13- PART 4-REPORTING OF DEATHS Sub-clause (I) requires the reporting of "reportable deaths" by any person who has reasonable grounds to believe that such a death has occurred. Sub-clause (2) requires that the State Coroner be informed of reported deaths. Sub-clause (3) requires doctors to report certain deaths. 2

3 Sub-clause (4) requires doctors to give information to coroners investigating deaths. Sub-clause (5) requires the reporting of all deaths of persons held in care. Clause 14 requires a person who reports a death or a police officer who has information relevant to an investigation into a death to give that information to a coroner. PART 5-INVESTIGA TION OF DEATHS Dil'ision I-General Powers and Duties o.fcoroners Clause 15 states a coroner's jurisdiction to investigate a death. Clause 16 gives the State Coroner power to give directions to other coroners about investigations of deaths. Clause 17 specifies the circumstances in which a coroner must hold an inquest into a death. In other circumstances, the holding of an inquest is discretionary. Clause 18 provides that a person may request an inquest into a death; an appeal lies to the Supreme Court if a request is refused. Clause 19 requires a coroner investigating a death to make certain findings, and permits a coroner to comment on matters connected with the death, provided that no finding or comment is made that a person is or may be guilty of an offence in relation to the death. Clause 20 requires that a record of an investigation into a death be kept. Clause 21 permits a coroner to report and to make recommendations to the Attorney-General on a death and requires a report to the Director of Public Prosecutions where an indictable offence may have been committed. Clause 22 requires a coroner to notify the Government Statist of the particulars needed to register a death. Clause 23- Sub-clause (I) requires a coroner investigating a death to issue, as soon as possible, a certificate permitting disposal of the body. Sub-clauses (2) and (3) prevent the issue of a certificate where an application for an inquest has been made under Clause 18. Clause 24 provides that a body is under the control of the coroner investigating the death until the coroner has issued a certificate permitting the disposal of the body. \ Clause 25 provides that the State Coroner may help a coroner of another State or Territory to investigate a death, and must do so if the Attorney-General directs. DiI"ision 2-Powers of inl"estigation Clause 26- Sub-clause (I) gives power of entry, inspection and possession to a coroner investigating a death. Sub-clause (2) provides that these powers can only be exercised if reasonably necessary for an investigation. Sub-clause (3) allows a coroner to give written authority to a police officer to exercise these powers. 3

4 Sub-clause (4) requires a police officer to give a copy of the authority to the owner or occupier or the person in possession of the document or thing to be inspected, copied or taken. Sub-clause (5) provides that a coroner may release something taken under sub-clause (I ), and may do so upon conditions. Sub-clause (6) requires compliance with an undertaking concerning release. Clause 27 provides that a coroner may direct a pathologist or a doctor under a pathologist's direct supervision to perform an autopsy. Clause 28- Sub-clause ( I) enables a person to ask a coroner to direct that an autopsy be performed. Sub-clause (2) requires the coroner to inform the person if a request is refused. Sub-clause (3) provides that an appeal lies to the Supreme Court if an autopsy is refused. Sub-clause (4) provides that the Supreme Court may order an autopsy and prohibit disposal of the body until the State Coroner has the autopsy results. Clause 29- Sub-clause (I) provides that the senior next of kin of a deceased may ask a coroner not to require an autopsy; the coroner must notify the senior next of kin if the coroner decides that an autopsy is necessary. Sub-clause (2) provides that if a request has been made under sub-clause (I) the autopsy must be delayed unless it needs to be performed immediately. Sub-clause (3) enables the senior next of kin to apply to the Supreme Court for an order that no autopsy be performed. Sub-clause (4) empowers the Supreme Court to order that no autopsy be performed. Sub-clause (5) defines "senior next of kin ". Clause 30 enables the State Coroner to order exhumation of a body. An appeal against the order lies to the Supreme Court. PART 6-INVESTIGATION OF FIRES Division I-General Powers and Duties Q{Coroners Clause 31 states a coroner's jurisdiction to investigate a fire. Clause 32- Sub-clause (I) enables a person to ask a coroner to investigate a fire. Sub-clause (2) requires the coroner to give reasons in writing if a request is refused. Sub-clause (3) requires a person who asks for an investigation of a fire to give to the coroner information which may help the investigation. Clause 33 gives the State Coroner power to give directions to other coroners about investigations of fires. Clause 34 specifies the circumstances in which a coroner must hold an inquest into a fire. In other circumstances, the holding of an inquest is discretionary. 4

5 Clause 35 provides that a person may request an inquest into a fire; an appeal lies to the Supreme Court if the request is refused. Clause 36 requires a coroner investigating a fire to make certain findings and permits a coroner to comment on matters connected with a fire, provided that no finding or comment is made that a person is or may be guilty of an offence in relation to the fire. Clause 37 requires that a record of an investigation into a fire be kept. Clause 38 permits a coroner to report and to make recommendations to the Attorney-General on a fire and requires a report to the Director of Public Prosecutions where an indictable offence may have been committed. Clause 39 requires a police officer to give relevant information to a coroner investigating a fire. Division 2-Powers of Investigation Clause 40 enables a coroner to restrict access to a fire area and prohibits entry or interference with a restricted area without good reason. Clause41 gives a coroner investigating a fire the same powers as are given under Clause 26 in relation to an investigation ofa death. PART 7-INQUESTS INTO DEATHS AND FIRES Clause 42 requires advertisement of the time and place for the holding of an inquest. Clause 43 enables a number of deaths and fires to be investigated at one inquest. Clause 44 provides that the rules of evidence are not applicable to inquests. Clause 45 sets out the rights of interested people to appear at an inquest, call and examine witnesses and make submissions. Clause 46 sets out the powers of a coroner at an inquest. A coroner may be assisted by Counsel or by the Director of Public Prosecutions if the Director wishes to assist. Clause 47 enables a coroner to exclude people from an inquest. Clause 48 imposes a penalty for interruption of an inquest. Clause 49 enables a coroner to hold an inquest with a jury. An inquest must be held with ajury if the Attorney-General directs or an Act requires it. Clause 50 enables a relative of the deceased, a member of the police force or a person knowing the circumstances leading to death to ask a coroner to hold an inquest into a death with ajury. Clause 51 provides that a jury is to consist of not less than five and not more than twelve jurors. Clauses set out the procedures for an inquest with ajury. Clause 55 sets out the functions of ajury. Clause 56 requires the answers ofajury to be unanimous. Clause 57 requires the recording of evidence at an inquest by a licensed shorthand writer or by mechanical means. Clause 58 requires a coroner to restrict the publication of a report of an inquest in certain circumstances. 5

6 Clause 59 enables a person to apply to the Supreme Court for an order that the findings of an inquest are void. The Court may declare that the findings are void and order a new inquest or the re-opening of an inquest. PART 8-MISCELLANEOUS Clause 60 makes it unlawful to obstruct a coroner or a person acting with a coroner's authority. Clause 61 protects a coroner or an authorized person from legal proceedings unless they have acted in bad faith. Clause 62 protects a coroner or an authorized person from being called to give evidence in any court or judicial proceedings about anything coming to their knowledge in carrying out their functions under this Bill. Clause 63 enables the Governor in Council to make regulations. Clause 64 repeals the Coroners Act. PART 9-REPEALS AND AMENDMENTS Clauses repeal or amend sections of other Acts. By Authority F D Atkinson Government Primer Melbourne