The role of the coroner
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The Coroners Act 2008 (Vic) (‘Coroners Act’) imposes a statutory requirement on members of the public generally (s 12), and on medical practitioners specifically (s 13), to notify a coroner – or the police officer in charge of a police station – of a reportable death where there are reasonable grounds to believe the death has not been reported (see ‘What is a “reportable death”?’, below).
The key sections of the Coroners Act are:
section 13(1), which imposes obligations to report deaths the coroner has the discretion to investigate;
section 14, applies to which deaths that may be investigated; and
section 15, applies to deaths that must be investigated.
Where a registered medical practitioner is present at or after a person’s death, the medical practitioner must report a reportable death to the coroner without delay (s 10(1)).
It is normal practice for the Births, Deaths and Marriages (BDM) registrar to report to the coroner any reportable deaths that have not been investigated.
A member of the immediate family of a deceased where the death occurs within three months of discharge from an approved mental health service may report the death to the coroner (s 12(2)). The coroner has the power to investigate whether such a death is a reportable death (s 4(2(d))).
What is a ‘reportable death’?
There is no exhaustive statutory definition of exactly what a ‘reportable death’ is. However, sections 4(2)(a)–(j) of the Coroners Act sets out categories of cause of death that constitute a ‘reportable death’. These include:
deaths that appear unexpected, unnatural or violent;
deaths of persons during or as a consequence of a medical procedure where a doctor would not have reasonably expected death;
deaths of persons while in custody; and
deaths of patients within the meaning of the Mental Health Act 1986 (Vic).
The death of a person who has been assisted to die under the provisions of the Voluntary Assisted Dying Act 2017 (Vic) is not a reportable death for the purposes of the Coroners Act (s 4(3)).
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The coroner has jurisdiction to hold an inquest (a formal inquiry into a death) about any fire or reportable death as defined by the Coroners Act. The coroner must investigate a reportable death provided the death is a reportable death and took place in Victoria and occurred within 50 years of the death being reported (s 15). The coroner may investigate a death within 100 years of being notified of the death (s 14(1)).
The coroner does not have to hold an inquest where the death is not a reportable death (as referred to in section 4(2)(b)), or where a medical investigator examines the body and is of the opinion that the death was caused by natural causes (s 17).
Section 52 of the Coroners Act states that the coroner must hold an inquest if:
the death, or cause of death, occurs in Victoria;
the death is the result of a homicide;
the deceased was in custody or care at the time of death;
the identity of the deceased is unknown; or
a regulation requires it.
The date, time and place of the inquest must be published (s 61).
The coroner can call witnesses and require witnesses to answer questions, subject to the witnesses’ right to not self-incriminate (ss 55, 57, 64).
The coroner determines who should be called as a witness at the inquest and determines what issues are to be investigated (s 64(b)). The coroner may give leave to appear to any interested party (s 56). Interested parties can make submissions to the inquest and be legally represented (s 66).
The inquest is not bound by the formal rules of evidence and the inquest is to be conducted with as little formality as the interests of justice permit (ss 62, 65).
The coroner must find if possible:
the identity of the deceased;
the cause of death; and
the circumstances of death (s 67).
However, the coroner is not to make any finding of guilt of an offence, but can comment as to a referral to the Director of Public Prosecutions (s 69).
If any person buries, cremates or otherwise disposes of the body of any person who died in such circumstances before the coroner has had an opportunity of viewing the body, that person is guilty of an offence.
A coroner is bound to order an autopsy if they believe that the autopsy is necessary for the investigation of the death and it is appropriate to give the direction (s 25(1)). Alternatively, the coroner may not require an autopsy to determine the cause of death, instead relying on other sources of information available. The coroner may direct a medical investigator to perform a procedure on a body for the purposes of identifying the body (s 24).
Under section 27 of the Coroners Act, any person may ask the coroner to direct that an autopsy be held, but the coroner may refuse with reasons.
The coroner is obliged to take reasonable steps to notify the senior next of kin of the deceased (as defined in the Coroners Act) of the coroner’s intention to conduct an autopsy (s 26(1)). The senior next of kin has 48 hours to object to the carrying out of an autopsy. The senior next of kin has a right of appeal to the Supreme Court of Victoria if their objection is refused.
Such an autopsy can only be ordered where the coroner believes it is necessary for the investigation of the death and it is appropriate to give such a direction (s 25(2)). Within 48 hours of receipt of notice from the coroner, the senior next of kin may ask the coroner to reconsider the decision (s 26(2)).
The senior next of kin must be notified of the result of the coroner’s reconsideration. The autopsy still cannot take place until 48 hours have elapsed from the time the senior next of kin is notified of the result of the coroner’s reconsideration, so that the senior next of kin may apply to the Supreme Court to have the decision overturned (ss 26(2), (3)) if they wish to take that step. The appeal is heard before a single justice of the Supreme Court (s 79).
The senior next of kin must be provided with any reports given to the coroner (s 115(1)(a)). Interested parties may be given leave to appear at the inquest (s 56), if one is held, and must be provided with a copy of the inquest brief (s 115(1)(b)). However, this right does not extend to general documents held by the coroner (s 115(6)).
The Coroners Act provides that a coroner may provide a body to a medical investigator to enable a preliminary examination to be performed on a body, which consists of various non-invasive tests, such as taking and testing samples, X-rays, or similar imaging tests. Accordingly, a preliminary examination may provide sufficient information to establish the cause of death, without requiring the need for an autopsy.
The coroner has the power to make recommendations to any minister, public statutory authority or entity regarding any matter where a death or fire has been investigated (s 72). The public statutory authority or entity receiving the recommendations is obliged to respond within three months (s 72(3)). Unless otherwise ordered by a coroner, a coroner’s findings, comments and recommendations made following an inquest must now be published on the internet (s 73).
Many people who find themselves in the position of having to arrange a funeral or cremation are unaware of the full costs involved. Fewer still are aware that these costs can be reduced substantially by members of the deceased’s family or friends making arrangements themselves, rather than engaging the services of a funeral director. Hiring a funeral director or a minister is not required by law. Nor does the law require there to be a formal funeral or cremation ceremony. This chapter explains what the law does require.
The role of the coroner
Chapter: 9.5: Funerals
Contributor: Justin Rizzi, Barrister
Current as of: 1 September 2024
Law Handbook Page: 824
Next Section: The registration of a death
