In May this year, deputy state coroner Elaine Truscott ruled that Michael Atkins be compelled to testify at the coronial inquest into the death of his boyfriend Matthew Leveson.
Mr Atkins was tried and acquitted of the 20-year-old’s murder and manslaughter in 2009.
He did not give evidence at his own trial and police tapes of interviews with Mr Atkins were ruled as inadmissible evidence, as police at the time had not informed him he was a suspect.
It is still unknown what Mr Atkins knows about Mr Leveson’s death and whether he had any involvement.
Ms Truscott’s ruling forcing Mr Atkins to give evidence came with the caveat that any incriminating information he disclosed during the inquest could not be used against him in any hypothetical future criminal proceedings.
Mr Atkins was issued a certificate under section 61 of the NSW Coroner’s Act which granted him immunity from prosecution.
After five days of intense questioning at the inquest, Mr Atkins agreed to lead police to the body.
On Thursday, November 10, New South Wales police launched a search and started digging in Royal National Park south of Sydney, looking for the remains of Mr Leveson.
Can Michael Atkins face any charges?
At this stage it is very unlikely, because of three reasons — double jeopardy laws, the section 61 certificate he was issued by the NSW deputy coroner and a separate deal struck within the last week with NSW Attorney-General Gabrielle Upton.
Double jeopardy laws mean a person cannot be put on trial twice for the same offence, unless fresh or compelling new evidence is produced — a body for example.
Associate Professor Thalia Anthony from the University of Technology Sydney said the section 61 certificate issued by the coroner means he is free from prosecution from anything admitted during the coronial inquest, unless he lies or withholds evidence.
“According to the arrangement that has been made under section 61 of the coroner’s act, he is completely immune from any criminal prosecution arising from the evidence — including finding the body — that has occurred within the coronial inquest,” she said.
She said civil charges were also off the table.
“The Levesons have been very cooperative in the coronial jurisdiction and so they’ve sought to get to the bottom of the matter rather than pursue damages,” she said.
“Indeed the nature of the legislation that provides immunity.”
What is a section 61 certificate and why are they issued?
University of Sydney Law School Associate Professor Arlie Loughnan said there was a distinct difference between a coronial inquest and a criminal trial.
“It’s what lawyers like to call an inquisitorial process which means it’s aimed at getting at the truth,” she said.
“The orientation of the coronial inquiry is towards getting answers rather than in a criminal law context where the procedure is adversarial and it’s about the presentation of arguments by either side.”
During coronial inquests witnesses are entitled to object to answering questions if a truthful answer may tend to incriminate them.
But the coroner can decide to provide a section 61 certificate to compel a reluctant witness to give evidence.
Associate Professor Loughnan said the issuing of such a certificate could help get to the heart of the matter.
“If a person doesn’t give evidence willingly then the coroner goes through an inquiry to decide whether the information the person has is relevant to his or her inquiry — in other words they know something that the coronial inquest needs to address,” she said.
“If that’s the case then the coroner issues a certificate which requires the person to give evidence in the coronial inquiry under oath.
“The certificate indicates that the evidence can’t be used in a criminal proceeding.”
Not an easy choice
This is not a decision that is taken lightly.
The Local Court Bench Book – Coronial Matters said “the issuing of a certificate requires careful consideration. Evidence given under the protection of the certificate may not be used directly or indirectly by police or investigators in NSW and therefore may taint or retard future investigations”.
It said the advice of police and counsel assisting the coroner must be sought before such a certificate is issued.
Mr Leveson’s family, who pushed for years to get the coronial inquest reopened and Mr Atkins on the stand answering questions, was also consulted.
Mr Leveson’s mother Faye Leveson said the family realised it might be the only chance to recover the 20-year-old’s remains.
“Whatever he tells us, that directly or indirectly gives us back Matty and whatever is found … from that information, he cannot be prosecuted for it,” she said.
“In other words, it’s a get out of jail free card. We get Matt and he walks.”
The deal with the Attorney-General
The one thing the section 61 certificate deal with the coroner did not cover is perjury or contempt of court.
If Mr Atkins was found to have lied to the coronial inquest he could be prosecuted for perjury which carries a maximum sentence of 10 years in jail.
On Friday, November 4, Mr Atkins admitted on the stand he had lied in his evidence to the inquest, and the police have used this as leverage.
The office of the NSW Attorney-General confirmed a deal was struck with Mr Atkins on Monday.
Under the deal, Mr Atkins was given indemnity specifically from prosecution for perjury and contempt of court on the evidence he gave last week at the inquest.
The deal is conditional on detectives actually finding Mr Leveson’s remains. Put simply — no body, no deal.
Ms Upton said she granted the indemnity following discussions with the Leveson family earlier this week.
“I had the privilege to speak to Matthew’s parents, Mark and Faye Leveson, earlier this week who told me they support the granting of this conditional immunity,” she said.
“Importantly the conditional immunity only covers prosecution for any perjury and contempt of court offences.”
‘Terrible’ decision
Mrs Leveson said it was a terrible thing for the family to have to come to terms with.
“It wasn’t a decision we made lightly — we made the decision as a family,” she said.
“In the way we look at it, it’s a win-lose situation, otherwise it would be a lose-lose situation. Without it we have no hope.
“We just want to bring him home and give him a send-off, a celebration of his life. What every human being deserves and what our son deserves.”
Where to from here?
The search for Matthew Leveson’s body is continuing — at the same time police and legal experts are examining whether any future charges are even possible.
The discovery of any other “fresh and compelling evidence” could potentially lead to charges but it is a grey area.
This post originally appeared on ABC News.
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