This issue arises from a decision of the Victorian Supreme Court in Victoria Police SOG Operators 16, 34, 41 and 64 v Coroners Court of Victoria  VSC 246. The special operations group were involved in the arrest of a murder suspect who ‘had a lengthy and violent criminal history which involved firearms’. During the course of the operations the suspect was shot and killed either by operator 16 or 41 (the officers were not identified by name).
Under the Coroners Act 2008 (Vic) a coroner’s inquest is to determine the identity of the deceased; and the cause of death (s 67). These were not controversial, everyone knew the identity of the deceased and he died as a result of gunshot wounds inflicted by the police. Section 49 of the Act says:
The principal registrar must notify the Director of Public Prosecutions if the coroner investigating the death or fire believes an indictable offence may have been committed in connection with the death or fire.
The section applies if the Coroner ‘believes an indictable offence may have been committed’ (emphasis added); the coroner does not have to be satisfied it was committed. In Victoria, the offence of murder is provided for in the Crimes Act 1958 (Vic). That section provides a maximum gaol term of life imprisonment but does not explain what constitutes murder. Without citing ancient authority, for the sake of the argument let us accept that murder involves an act of the accused, that causes the death of the deceased, where the accused intended to kill the victim. In this case there could be no doubt that the victim was dead, and it was known that either operator 16 or 41 fired the fatal shots. If they did not intend to kill they at least intended to injure and so could be guilty of manslaughter. As such the coroner referred the matter to the DPP.
In making that report the coroner, who is not allowed to determine whether or not someone is guilty of an offence (Coroners Act 2008 (Vic) s 69), said:
From my perspective, a man has died, therefore the offences are very severe. The defences, at least the self defence issue, I am of the view is not something for me to decide. It’s something to be decided in the Supreme Court if the charges were laid and if you then faced that prosecution.
But from my perspective, the defences are not something for me to decide. They are not part of the circumstances, because I can’t assess it at the level at which a jury would assess it. And so I don’t want to compromise that.
The Coroner was not deciding they were guilty, or even that she thought they were guilty, she was concluding that the elements of the case for murder or manslaughter might be established but it was not for her to decide. What she had to do was refer it to the Director of Public Prosecutions (the DPP) as the appropriate person to decide whether or not charges should be laid.
The DPP reviewed the case, determined that there was no criminal conduct and referred the matter back to to the Coroner to finish her inquest. At that time the police officers sought an order that the Coroner no longer hear the matter because they said her decision to refer to the case to the DPP showed bias. That application was rejected and presumably the Coroner will now hear the matter knowing that the DPP has determined that no charges are to be brought. The Supreme Court, in rejecting the application to have the Coroner step aside, did say she’d made some errors in her approach that need not concern us here and did not affect the outcome.
The issues that I want to draw attention to, and that are relevant to all emergency workers not just the police, is first, her decision to refer the matter to the DPP was not a judgement of guilt. She does not get to make that decision if she thinks the people before her are guilty, but if they may be guilty. A coroner does not determine guilt or innocence, a trial court does that. In this case it did not get there as the DPP decided not to proceed. The fact that the DPP decided not to proceed does not mean the Coroner was wrong to refer the matter, it just shows that the issue of whether or not to proceed with criminal proceedings was a matter for the DPP, not the coroner.
The more interesting issue for readers of this blog was the fact that the Coroner refused to allow the officers to give evidence. She did this because they applied for a certificate under s 57 which preserves the privilege against self-incrimination. Under that section if a certificate is issued, anything the witness says cannot be used against them in subsequent proceedings (both criminal and civil).
It is up to the Coroner to determine which witnesses are called. In this case rather than allow the operators to give evidence and issue a certificate, the Coroner said she would not require them to give evidence. They were not going to add to the findings she would have to make as to the identity of the deceased or the cause of death. Any explanation they would want to give as to why they shot the deceased would go to questions of whether the shooting was lawful or not, and that was a matter that she wanted to refer to the DPP. Getting them to give evidence could raise all sorts of issues about what evidence was incriminatory and what was not. She did not want to compromise future proceedings so felt it was better not to call them at all, rather than require them to give evidence and issue a certificate. She obviously believed she was acting in everyone’s best interests.
But here’s the problem, the officers wanted to give evidence and the coroner knew that. She said
I understand how you feel about wanting to give evidence. I have had at least four times when I’ve excused policemen for various reasons, usually under the Occupational Health and Safety Act, their — usually their superintendents or similar, when I meet them somewhere coming to me and saying, ‘I had terrible trouble with that case because those guys wanted to tell me what had happened, they wanted to make sure that they were on the record exactly and then there was no other way in which that could happen.
I don’t do it lightly. I don’t do it in a way that means I don’t take that into account at the personal level. But from my perspective, the defences are not something for me to decide. They are not part of the circumstances, because I can’t assess it at the level at which a jury would assess it. And so I don’t want to compromise that.
It’s not the first time I’ve heard this, both personally and from other people in different circumstances. I understand your job pretty well and I understand why you want to give evidence, at least at that level. But sometimes I’m concerned about the implications of it.
Coroner’s inquests (into deaths) and inquiries (into fires) are a common outcome of events that the emergency services attend. If you believe they are there to help ‘find the truth’, to discover everything there is to discover, you will be disappointed by the outcome here. The Coroner is a law officer whose duties are defined by law; in this case to determine the identity of the deceased and the cause of death and if there is evidence that an indictable offence may have been committed to refer the matter to the DPP. This Coroner did that.
Courts, including the coroner’s court, are not however open forum for everyone to speak. It may be good if they were, even therapeutic, but they’re not. In court witnesses get to answer questions, not tell their story and Court’s only want to hear evidence relevant to the issues before them, not relevant to the issues the parties necessarily wish were before the court. So here the police officers did not get to tell the Coroner their version of events, why they did what they did. Not because it was not important to them, but because of the strictures on the Coroner imposed by the Act.
Now the matter is back before the Coroner she can make further findings on the procedures and if there is some recommendation she can make to reduce the risk of further deaths she can. She could now hear from the police officers, but may not. The issues still exist, if they want a certificate under s 57 to protect them from issues under OHS law, civil actions, or even to stop the DPP reviewing his decision, she may still decide that in fact they are better protected by not being called at all. Whether they are called is the Coroner’s call, not the witnesses.
We may hope that courts, including the coroner’s court, are a tool to discover ‘the truth’. In fact they are a tool to resolve issues according to law, and that is not the same thing.
In research we have done for the Bushfire CRC we have identified that litigation against the emergency services is very rare and largely unsuccessful. People who report a fear of litigation really report a fear of the process. Sometimes that process will see people cross-examined and there every decision questioned; in other times, such as this, it will see them denied the chance to explain what they did and why.
That may be effective in determining the legal consequences but may not be an effective way to identify the lessons that should be identified from past events.
22 May 2013