The powers of a Coroner in conducting an inquest are far reaching. In 2003 when the Coroner’s Act 2003 commenced, section 39 introduced a provision which allows the Coroner to direct and require a witness to give evidence that would tend to incriminate the witness. A Coroner may only make such a requirement if satisfied that it is in the public interest for the witness to do so.

There are any number of acts of parliament which seek to abrogate this privilege. The right to claim privilege against self-incrimination is the right of an individual to refuse to answer a question or produce any document or thing that might tend to bring the person into the peril and possibility of being convicted of a crime.  It is a fundamental and substantive common law right and not just a rule of evidence.  The right to silence protects the right not to be made to give evidence against oneself whether that evidence is incriminating or not.

In order to balance the abrogation of this right, the Coroner’s Act 2003 makes clear that the evidence which tends to incriminate the witness is not admissible against the witness in any other proceeding, other than a proceeding for perjury.  In addition, the Coroner’s Act 2003 states that derivative evidence, being information, documents or other evidence obtained as a direct or indirect result of the evidence of the witness, is not admissible against the witness in a criminal proceeding.

It is as a result of these provisions that the Coroner’s Act 2003 has sought to strike a balance between the abrogation of this basic privilege and the uses which can be made of any evidence provided because of it.

On 20 May 2020, the Justice and Other Legislation Amendment Bill 2019 was passed by the Queensland Parliament.  The bill introduces provisions to the Coroner’s Act 2003 that allow the repealed Coroner’s Act 1958 to continue to apply to a pre-commencement fire or an unfinished inquest.  The amendments allow a Coroner to stop an unfinished inquest under the repealed legislation and reopen the inquest under the Coroner’s Act 2003.  If a death occurred before the Coroner’s Act 2003 commenced, and an inquest is reopened under the current legislation the provisions and powers which allow a Coroner to require evidence that would tend to incriminate the person will apply.

It is important to remember though that, although this will remove the privilege against self-incrimination for many who may be required to appear before the Coronial Court in relation to an inquest, the use that can be made of any evidence given in criminal proceedings against the person is limited. These protections provide an important balance in the coronial jurisdiction.

If you would like any further information about the coronial process, please see our Coronial Inquests page, here.

If you would like to discuss a coronial inquest and the impact of these legislative changes on a pre-2003 inquest that you or your family have been involved in, please contact our office on 07 3034 0000