Part 6.3Part 6.3 Representation and evidentiary matters
57 Representation in coronial proceedings
(cf Coroners Act 1980, s 32 (1) and (2))
(1) The coroner in coronial proceedings may grant leave to any person, who in the opinion of the coroner has a sufficient interest in the subject-matter of the proceedings, to appear in person in the proceedings or to be represented by an Australian legal practitioner.(2) Any person granted such leave may examine and cross-examine any witnesses on matters relevant to the proceedings.(3) A coroner holding an inquest concerning the death or suspected death of a person must grant leave under subsection (1) to any person who is a relative of the deceased person (or suspected deceased person) unless the coroner is satisfied that there are exceptional circumstances that justify the coroner refusing leave.(4) If an inquest or inquiry is held before a jury:(a) a person appearing, and an Australian legal practitioner representing a person, at the inquest or inquiry is entitled to make an opening and a closing address to the jury, and(b) the person assisting the coroner may make an opening and a closing address to the jury and in addition has a right of reply in respect of any closing address made pursuant to paragraph (a).
58 Rules of procedure and evidence
(cf Coroners Act 1980, s 33)
(1) A coroner in coronial proceedings is not bound to observe the rules of procedure and evidence that are applicable to proceedings before a court of law.(2) Except as otherwise provided by this Act, a witness in coronial proceedings who is a natural person cannot be compelled to answer any question or produce any document that might tend:(a) to incriminate the witness for an offence against or arising under an Australian law or a law of a foreign country, or(b) to make the witness liable to a civil penalty.
59 Witnesses may be required to give evidence on oath or affirmation
(cf Coroners Act 1980, s 31)
(1) The coroner in coronial proceedings may examine on oath or affirmation all persons who:(a) tender evidence relevant to the proceedings, or(b) are able, in the opinion of the coroner, to give evidence relevant to the proceedings.(2) For the purposes of subsection (1), the coroner:(a) may require a person who appears in the proceedings to give evidence to take an oath or to make an affirmation in a form approved by the coroner, and(b) may administer an oath to, or take an affirmation from, a person appearing in the proceedings.
60 Persons granted leave may apply for witness to be examined
(cf Coroners Act 1980, s 31A)
(1) A person granted leave to appear or be represented in coronial proceedings may apply to the coroner to have a particular person examined in the proceedings. Such an application can be made before or during the hearing of the proceedings.(2) A coroner who refuses such an application must give the applicant the reasons for refusing the application.(3) The coroner is required to deal with such an application as soon as reasonably practicable after it is made and in any case before the proceedings are concluded.
61 Privilege in respect of self-incrimination
(cf Coroners Act 1980, s 33AA)
(1) This section applies if a witness in coronial proceedings objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or(b) is liable to a civil penalty.(2) The coroner in the coronial proceedings must determine whether or not there are reasonable grounds for the objection.(3) If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness:(a) that the witness need not give the evidence unless required by the coroner to do so under subsection (4), and(b) that the coroner will give a certificate under this section if:(i) the witness willingly gives the evidence without being required to do so under subsection (4), or(ii) the witness gives the evidence after being required to do so under subsection (4), and(c) of the effect of such a certificate.(4) The coroner may require the witness to give the evidence if the coroner is satisfied that:(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and(b) the interests of justice require that the witness give the evidence.(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the coroner must cause the witness to be given a certificate under this section in respect of the evidence.(6) The coroner is also to cause a witness to be given a certificate under this section if:(a) the objection has been overruled, and(b) after the evidence has been given, the coroner finds that there were reasonable grounds for the objection.(7) In any proceeding in a NSW court within the meaning of the Evidence Act 1995 or before any person or body authorised by a law of the State, or by consent of parties, to hear, receive and examine evidence:(a) evidence given by a person in respect of which a certificate under this section has been given, and(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.(9) A reference in this section to doing an act includes a reference to failing to act.(10) A certificate under this section can only be given in respect of evidence that is required to be given by a natural person.
62 Refusal of witness to be examined
(cf Coroners Act 1980, ss 42 and 54 (1))
A person who appears (whether or not on subpoena or warrant) to give evidence or to produce any document or thing in coronial proceedings must not, without lawful excuse:(a) refuse to take the oath or affirmation, or(b) refuse to be examined on oath or affirmation, or(c) having taken the oath or made an affirmation, refuse to answer any question relevant to the subject-matter of the proceedings, or(d) refuse or fail to produce the document or thing.Maximum penalty: 10 penalty units.
(cf Coroners Act 1980, s 34A)
Parts 3 and 4 of Chapter 6 of the Criminal Procedure Act 1986 apply to and in respect of any coronial proceedings in the same way as they apply to and in respect of proceedings before a court, and any function exercisable by an authorised person under those Parts may, for the purposes of coronial proceedings, be exercised by a coroner.
64 Fresh inquest or inquiry—admission of previous depositions
(cf Coroners Act 1980, s 33A)
(1) A coroner holding a fresh inquest or inquiry may admit in evidence the depositions taken at any previous inquest or inquiry.(2) Subsection (1) is subject to the terms of an order made by a court for the holding of the fresh inquest or inquiry.Note. Section 83 provides for the circumstances in which a fresh inquest or inquiry concerning a matter may be held by a coroner following the termination or conclusion of a previous inquest or inquiry concerning the matter. Also, section 85 enables the Supreme Court to order that a fresh inquest or inquiry be held in certain circumstances.
(cf Coroners Act 1980, s 34)
(1) The coroner in coronial proceedings is to ensure that the evidence of every witness in the proceedings is recorded.(2) Subject to this section, a coroner or assistant coroner is to supply a person with a copy of a coroner’s file (or a part of that file) at the request of the person if:(a) the coroner or assistant coroner is satisfied that it is appropriate for the person to be granted access to the file (or a part of the file), and(b) the person pays the fee that is payable in the Local Court for the provision of a copy of a document (other than a copy of a judgment or order or the reasons for a judgment or order) or such other fee as may be prescribed by (or calculated in accordance with) the regulations.(3) In determining whether it is appropriate to grant a person access to a coroner’s file (or a part of the file), the coroner or assistant coroner making the determination is to have regard to the following matters:(a) the principle that coronial proceedings should generally be open to the public,(b) if the coroner’s file relates to a deceased person—the impact on the relatives of the deceased person of allowing access,(c) the connection that the person requesting access has to the proceedings concerned,(d) the reasons why access is being sought,(e) any other matter that the coroner or assistant coroner considers relevant.(4) A coroner who conducts coronial proceedings may, by notation on the coroner’s file on the matter, direct that a copy of the whole or a particular part of the file is not to be supplied under this section.(5) A direction by a coroner under subsection (4) must include a statement of the coroner’s reasons for the direction.(6) A copy of a coroner’s file (or of any part of the file) is not to be supplied under this section in contravention of:(a) a direction by a coroner under subsection (4), or(b) an order made under section 74.(7) In this section:coroner’s file means the documents (including the depositions of witnesses, transcripts and written findings) that form part of the file kept by a coroner in respect of a death, suspected death, fire or explosion.
66 Subpoena for appearance or warrant for arrest of witness
(cf Coroners Act 1980, s 35)
(1) If it appears to a coroner that any person is likely to be able to give material evidence in coronial proceedings, or is likely to have in his or her possession or power any document or thing required for the purposes of evidence in the proceedings, the coroner may issue any of the following subpoenas:(a) a subpoena for the appearance of the person to be examined as a witness,(b) a subpoena for the person to produce the document or thing,(c) a subpoena both for the appearance of that person to be examined as a witness and to produce the document or thing.(2) However, if the coroner is satisfied by evidence on oath or affirmation that it is probable that the person will not comply with a subpoena unless compelled to do so, the coroner may issue a warrant in the first instance for the arrest of that person.(3) A coroner may exercise a function under this section in respect of coronial proceedings being conducted by another coroner, but only with the consent of that other coroner.(4) A person is not bound to produce any document or thing:(a) not specified or otherwise sufficiently described in a subpoena or arrest warrant issued under this section in respect of the person, or(b) that the person would not be bound to produce on a subpoena for production in the Supreme Court.(5) An assistant coroner may, at the direction of a coroner given in a particular case, exercise the power of the coroner to issue a subpoena or arrest warrant under this section.
(cf Coroners Act 1980, s 36)
A subpoena issued under this Part must:(a) be signed by the coroner or assistant coroner issuing it, and(b) be directed to the person whose appearance is required or who is required to produce a document or thing, and(c) require that person to appear at a certain time and place before the coroner conducting the coronial proceedings concerned to testify what the person knows concerning the subject-matter of the proceedings or to produce any document or thing specified or described in the subpoena.
68 Manner of service of subpoena
(cf Coroners Act 1980, s 37)
(1) A subpoena issued under this Part must be served by:(a) a police officer, or(b) where the coroner or assistant coroner issuing the subpoena so directs—the Sheriff, or a sheriff’s officer, within the meaning of the Sheriff Act 2005.(2) Service of a subpoena may be effected:(a) by handing it to the person to whom it is directed, or(b) if the person is an inmate of a correctional centre (within the meaning of the Crimes (Administration of Sentences) Act 1999):(i) by handing it to the officer in charge of the correctional centre, or(ii) by sending it by post or facsimile or other electronic transmission to the officer in charge at the correctional centre, or(c) if the person is a police officer or a public officer:(i) by sending it by post or facsimile to the person’s business address, or(ii) by sending it by electronic communication to the person’s business email address, or(d) if the person is not a police officer, public officer or inmate:(i) by sending it by post or facsimile to the person’s residential address, or(ii) by sending it by electronic communication to the person’s email address, or(e) if the person is represented by a legal practitioner—by leaving it, with the consent of the relevant legal practitioner for the person, at the relevant legal practitioner’s address for service or by sending it to that address by post or facsimile or by sending it to the legal practitioner’s email address for service by electronic communication.(3) If, on tender of a subpoena, the person refuses to accept it, it may be served by putting it down in the person’s presence after the person has been told of the nature of the subpoena.(4) Service of a subpoena in the manner specified in subsection (2) or (3) may be proved by the oath or affirmation of the person who served it attending the coronial proceedings concerned, by his or her affidavit or otherwise.(5) In this section:public officer means any of the following persons, but only when acting in an official capacity:
(a) an employee in the Public Service or the NSW Police Force,(b) an officer or employee of a statutory body representing the Crown,(c) an employee of a council within the meaning of the Local Government Act 1993,(d) an officer or employee of a livestock health and pest authority within the meaning of the Rural Lands Protection Act 1998,(e) the Director of Public Prosecutions, Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions,(f) an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition.relevant legal practitioner for a person means:
(a) if the person is represented only by a solicitor—the solicitor, or(b) if the person is represented only by a barrister under a direct access arrangement—the barrister, or(c) if the person is represented by both a solicitor and a barrister—the solicitor.
69 Arrest warrants for non-appearance in response to subpoena
(cf Coroners Act 1980, s 39)
If a person who has been issued with a subpoena to appear in coronial proceedings does not appear at the time and place specified in the subpoena, the coroner before whom the person was required to appear may, on proof of the due service of the subpoena on the person and if no just excuse is offered for the person’s non-appearance, issue a warrant for the arrest of the person.
(cf Coroners Act 1980, s 41 (1)–(3))
(1) An arrest warrant issued by a coroner or assistant coroner under this Part must:(a) be signed by the coroner or assistant coroner, and(b) be directed to:(i) a named police officer, or(ii) a person authorised by law to execute a warrant to arrest, or(iii) the senior police officer of the area where the warrant is to be executed, or(iv) the senior police officer and all other police officers, or(v) generally all police officers, and(c) name or otherwise describe the person to be arrested, and(d) order that the person be arrested and brought before a coroner to testify what the person knows concerning the subject-matter of the coronial proceedings or to produce the document or writing specified or described in the warrant.(2) An arrest warrant is to be returnable at a time and place to be stated in the warrant.(3) An arrest warrant may be executed by arresting the person against whom it is directed at any place in the State.
71 Arrest of witness under arrest warrant
(cf Coroners Act 1980, ss 40 and 41 (3))
(1) A person arrested under an arrest warrant issued under this Part is to be brought before a coroner or authorised justice as soon as practicable after the person’s arrest.(2) Subject to subsection (3), a person arrested under an arrest warrant may be dealt with in the same way as a witness arrested under a warrant issued under section 231 of the Criminal Procedure Act 1986.(3) A coroner or authorised justice before whom a person is brought after having been arrested under an arrest warrant issued under this Part:(a) must, subject to the Bail Act 1978, order that a warrant be issued for the committal of the person to a correctional centre or other place of security, and(b) must order the person to be brought before a coroner at such time and place as is specified in the order.(4) The Bail Act 1978 applies to the person (not being an accused person within the meaning of that Act) in the same way as it applies to an accused person within the meaning of that Act to whom section 9 of that Act applies and, for that purpose, bail may be granted to such a person under that Act with respect to the period between:(a) the person’s being brought before a coroner under a warrant for the purpose of being examined as a witness or producing a document or thing, and(b) the person’s being examined as a witness or producing the document or thing.(5) In this section:authorised justice has the same meaning as in the Bail Act 1978.
(cf Coroners Act 1980, s 38)
No objection may be taken or allowed to any subpoena or arrest warrant in respect of any alleged defect in the subpoena or warrant in substance or in form.