Borland v NSW Deputy State Coroner & Ors

Bax Global (Aust) Pty Ltd v Evans 1999 47 NSWLR 538 Controller-General of Customs v Disciplinary Appeal Committee & Day 1992 35 FCR 466 Decker v State Coroner of NSW 1999 46 NSWLR 415 Environment Protection Authority v Caltex Refining Co Pty Ltd 1993 178 CLR 477 House v The King 1936 55 CLR 499 CASES CITED : Police Service Board v Morris 1985 156 CLR 397 Pyneboard Pty Ltd v Trade Practices Commission 1983 152 CLR 328 Reid v Howard 1995 184 CLR 1 Rich v Australian Securities Commission 2004 220 CLR 129 Sorby v The Commonwealth 1983 132 CLR 281 The Daniels Corporation International v Australian Competition & Consumer Commission 2002 213 CLR 543

PARTIES : Anthony John Borland v NSW Deputy State Coroner C. Milovanovich, Attorney General of NSW and Brenda Philips

B. Walker SC with P. McGrath (Plaintiff) COUNSEL : R. Cogswell SC with S. Free (Second Defendant) P. Zahra SC (Third Defendant)

Walter Madden Jenkins (Plaintiff) SOLICITORS : I.V. Knight (Crown Solicitor) Nick Boyden Lawyers (Third Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2006/12422 - ANTHONY JOHN BORLAND v NEW SOUTH WALES DEPUTY STATE CORONER, MAGISTRATE C. MILOVANOVICH, ATTORNEY GENERAL OF NEW SOUTH WALES and BRENDA PHILIPS

JUDGMENT 1 HIS HONOUR: The plaintiff is a constable of police. The first defendant is a deputy state coroner on whose behalf a submitting appearance in the usual form has been filed. Intervention on the summons was sought by the Attorney General and Brenda Philips, the widow of Maxwell Philips and they have been joined as second and third defendants respectively. The summons seeks relief against a ruling by the first defendant at an inquest which he is conducting into the death of Maxwell Philips whereby he overruled an objection by the plaintiff to giving evidence. 2 In the early hours of 1 August 2004 the plaintiff was the driver of a caged police vehicle in which Constable Donna Ross was riding as observer. Consequent upon being called to a hotel in the city of Bathurst, observations were made of a motorcycle being ridden by Mr Philips. These observations were continued and, using an expression which should be understood only in a general sense, the motorcycle was followed by the police vehicle until the constables came upon it in circumstances of it apparently having been involved in a collision. They found the rider some distance from the damaged cycle. They were the first police officers on the scene and were joined by other police shortly thereafter. 3 The plaintiff and Constable Ross were each interviewed and directed to answer questions as they were obliged by Police Regulation 9 (1). Subsequently there was prepared and included in the brief for the Coroner a "collision analysis" by Senior Constable Bain. Among other things, he made a calculation of the average speed of the police vehicle driven by the plaintiff based upon information as to where it was said to have been at the times of various radio broadcasts. I note that he qualified his calculation with the caution that "application of the above data is speculative". He also made calculations of the estimated speed of Mr Philips' motorcycle. On the face of the documentation, an inconsistency can be perceived between the results of Senior Constable Bain's calculations and some of the answers given by the plaintiff at interview. 4 I do not relate the foregoing as facts found but have extracted them from the exhibit to the affidavit in support of the summons to demonstrate that the claim of the plaintiff of privilege against answering questions at the inquest was not frivolous. It was not suggested that it could be categorized as unsustainable. 5 Some background matters should be sketched. 6 The privilege against self-incrimination has been variously said to be deeply ingrained in the common law and a cardinal principle lying at the heart of the administration of the criminal law in this country: Sorby v The Commonwealth 1983 132 CLR 281. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of privilege cannot, in the absence of statutory warrant, be properly disregarded or overridden by the courts: Reid v Howard 1995 184 CLR 1 per Deane J. 7 The Evidence Act 1995 in s 128 made statutory provision concerning privilege in respect of self-incrimination. It allowed a court, if satisfied of certain matters including "the interests of justice" to require a witness claiming privilege to nevertheless give evidence but to issue a certificate which would have the effect of preventing the evidence thus obliged from being used against the person in any proceeding in a NSW court. The absolute privilege recognized in Reid was in that fashion abridged: Bax Global (Aust) Pty Limited v Evans 1999 47 NSWLR 538. 8 This provision was held not to apply to proceedings being heard in the Coroner's Court: Decker v State Coroner of New South Wales 1999 46 NSWLR 415. At the time of this decision s 33 of the Coroners Act 1980 (to which statute unless otherwise stated, section numbers refer) provided: "33. Rules of procedure and evidence . A coroner holding an inquest or inquiry shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law, but no witness shall be compelled to answer any question which criminates the witness, or tends to criminate the witness, of any felony, misdemeanour or offence". 9 Following the decision in Decker s 33 was replaced and s 33AA was added: "33 Rules of procedure and evidence A coroner holding an inquest or inquiry shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law, but no witness shall, except in accordance with section 33AA, be compelled to answer any question which criminates the witness, or tends to criminate the witness, of any offence.

33AA Privilege in respect of self-incrimination (1) This section applies if a witness at an inquest or inquiry held by a coroner who is a Magistrate objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty. (2) The coroner is to cause the witness to be given a certificate under this section in respect of the evidence if the objection is overruled but, after the evidence has been given, the coroner finds that there were reasonable grounds for the objection. (3) If the coroner is satisfied that the evidence concerned may tend to prove that the witness has committed an offence or is liable to a civil penalty but that the interests of justice require the witness to give the evidence, the coroner may require the witness to give the evidence. If the coroner so requires, the coroner is to cause the witness to be given a certificate under this section in respect of the evidence. (4) In any proceedings in a NSW court (within the meaning of the Evidence Act 1995 ): (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 that answer, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. (5) A certificate under this section can only be given in respect of evidence that is required to be given by a natural person". 10 It should be observed that the inquest touching the death of Mr Philips which may have occurred in the course of police operations falls within a class of mandated inquiry to be conducted by the State Coroner or a Deputy State Coroner and in respect of which the holding of an inquest may not be dispensed with (s 14B (1)(b)). 11 The jeopardy which the plaintiff asserts is the potential of the Commissioner of Police to take action in accordance with his powers under s 173 or s 181D of the Police Act 1990. Under the former, the Commissioner may take action including reduction in rank or seniority or deferral of salary increment, and under the latter may remove a police officer from NSW Police. 12 Thus, the plaintiff asserts that he is "liable to a civil penalty" within the meaning of that expression in s 33AA. It is conceded by the Crown Advocate Mr Cogswell SC for the Attorney General and Mr Zahra SC for Mrs Philips, that the provisions in the Police Act abovementioned suffice to constitute potential "civil penalty" so as to enliven the claim of privilege made by the plaintiff: Police Service Board v Morris 1985 156 CLR 397; Rich v Australian Securities Commission 2004 220 CLR 129. 13 Against that background the contesting arguments need to be considered. 14 The claim for relief is initially founded upon argument that, irrespective of other matters of dispute, the first defendant's ruling that the plaintiff be required to give evidence based upon s 33AA involved the exercise of a discretion which was tainted by error such that the ruling should be set aside and returned to the Coroner's Court to be exercised afresh. 15 I bear in mind that the expression of reasons was delivered ex tempore and it would be inappropriate to detect asserted error by an overly critical analysis of its terms but I should consider the substance of the decision. 16 Having ruled that he had the right to call any witness capable of giving relevant evidence, which ruling is not challenged, his Honour continued: "Sight should not be lost of the fact that Constable Borland and Constable Ross were the driver and observer in the vehicle that pursued or followed the deceased. They were the first at the scene and their evidence is vital in terms of the Coroner's statutory obligations in determining manner and cause of death. The second issue for consideration is whether, having ruled that Constable Borland and Ross are required to give evidence, whether the Coroner would exercise his discretion in not requiring those officers to give evidence on the grounds that the evidence they may give, may incriminate them. It is my view that the procedure in regard to s 33AA is clearly set out in the Coroner's Act 1980 . Firstly the officers are subject to examination under oath and under the provisions of s 33AA those officers may take objection to giving particular evidence on the grounds that the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty. S 33AA(2) states that a coroner is to cause to be given to that witness a certificate under s 33AA in respect of the evidence if the objection is overruled. In deciding as to whether to grant such a certificate, the Coroner must be satisfied that the evidence concerned, may tend to prove that the witness has committed an offence or is liable to a civil penalty but the interests of justice require the witness to give the evidence. If, having formed that view, the Coroner must grant a certificate under s 33AA. Dealing with those two issues, firstly it is the view of this Court that it is in the interests of justice that the witnesses be required to answer questions, even if the answers to those questions may tend to incriminate them. The reason that I hold that view is firstly that inquests under s 13A are mandatory and there is a public interest as was intended by s 13A that deaths that occur in a police operation be conducted by a State Coroner in a transparent and public forum. The interests of justice require that the death of any person in a police operation should be subject to judicial oversight as intended by the legislation. Secondly the interests of justice should also take into account that the next of kin of the deceased who have been granted leave to appear, should have the opportunity to cross-examine those witnesses as provided by the Coroner's Act 1980 as amended. As to whether the s 33AA Certificate will provide immunity to the officers in relation to disciplinary proceedings possibly taken by the Commissioner of Police is of course another and separate issue. On this point the Coroner cannot foresee whether that is imminent or likely. Further on this point it could be argued that the Coroner should not be concerned that the witnesses may face possible disciplinary proceedings as the intention of the legislation was to provide protection from prosecution in relation to an offence or in relation to a civil penalty. It has been argued by Mr Madden that the evidence given under a s 33AA Certificate cannot be used in a court and that disciplinary proceedings before various tribunals or disciplinary bodies probably do not fall within the definition of a court and therefore there is no protection. It would appear to me that even if I accept Mr Madden's submission that his clients may not be protected by a s 33AA Certificate, my view is that the interests of justice overrides the personal interest of the witness. ACCORDINGLY I RULE THAT THE WITNESSES ARE COMPELLABLE UNDER S 31 OF THE CORONER'S ACT AND THAT THEY ARE REQUIRED TO ANSWER ANSWERS". 17 The first observation that the plaintiff and Constable Ross were first on the scene in a vehicle which may have pursued or followed Mr Philips' motorcycle described a matter which undoubtedly had to be given weight in favour of their being called to testify. 18 There followed what amounts to a paraphrase of s 33AA, then his Honour stated that it is in the interests of justice that witnesses be required to answer questions even if the answers may tend to incriminate. That does not reveal a reason why the interests of justice provoke the requirement. 19 It is, however, a justifiable conclusion that the provisions mandating inquest by the State Coroner or a Deputy State Coroner where police operation may have been involved show a legislative intention that there be judicial (coronial) oversight. His Honour's observation infers that weight should be given to a desirability that police officers involved in such an operation should testify. 20 The next matter adverted to was the opportunity of the representatives of the deceased to cross examine the witnesses, but that is a conclusion rather than a reason. 21 His Honour then referred to the absence of his foresight as to whether disciplinary proceedings were imminent or likely. A privilege cannot be claimed if it is unsustainable, but, if it is sustainable in that it exposes the witness to potential jeopardy, it is not an additional requirement that the jeopardy be imminent or there be included some assessment of the likelihood of action being taken by whoever is vested with relevant power. 22 Then follows a somewhat cryptic statement that "it could be argued" that the Coroner should not be concerned about "disciplinary proceedings" as the intention of the Legislature was to provide protection from prosecution in relation to an offence or in relation to civil penalty. I note that the reference is to argument as distinct from finding. The plinth upon which the plaintiff's argument stood was that the mechanics of s 33AA provided no protection in relation to imposition of a civil penalty other than in a court. It is not only in a court that a civil penalty might be suffered. 23 The authorities above cited show that there is no universal reason for concluding that a civil penalty acquires a different character depending upon the identity of the imposer, be it court, tribunal or other authority, and a distinction between "disciplinary proceedings" on the one hand and proceedings for offence or civil penalty on the other should not be drawn. In due course it will be necessary to consider the context of the statute. 24 The final observation is that, even if the plaintiff can have no protection from a certificate given under s 33AA (3) in proceedings in which he is exposed to civil penalty, then "the interests of justice override the personal interest of the witness". 25 Mr Walker SC for the plaintiff noted that his Honour did not refer to the extent of civil penalty to which the plaintiff would be exposed. Whilst not seeking to diminish the community interest in the Coroner's function in making findings concerning a death, he pointed to provision within the statute (s 19) whereby inquest is to be terminated where an indictable charge is laid or conviction on such is in prospect, as an indication that Parliament has acknowledged that that interest can be overridden when a fair trial would be needed to be rendered to an individual. 26 I accept the submission that the appropriate test is not to ask whether personal interest is overridden by the interests of justice, however there was a balance to be taken between the importance of evidence sought to be compelled and the magnitude of the risks to which the witness would be potentially exposed if the claim to privilege was denied. 27 An assessment of the risk and the level of possible penalty was a material consideration. Making allowance for the ex tempore statement of reasons, it is my conclusion that "the personal interest of the witness" did not inhere such consideration, particularly in the absence of any reference to weighing the factor of risk. It follows that the plaintiff has made good the contention of miscarriage of discretion: House v The King 1936 55 CLR 499. 28 That conclusion suffices to entitle the plaintiff to relief to the extent that a declaration of error is sought which would entail a consequential order that the matter be returned to the Coroner for the issue to be dealt with according to law. 29 The plaintiff seeks an order prohibiting the first defendant from requiring him to give (potentially self-incriminating) evidence at the inquest. 30 I interpolate a recording that Senior Counsel on either side of the contest articulated what were submitted to be improbable outcomes. The submissions were to contradictory effect. For the plaintiff it was contended that the granting of a certificate to the witness who was within the scope of s 33AA "liable to a civil penalty" would be a charade when it provided no protection in the tribunal wherein he was liable to have such a penalty imposed. For the defendants it was contended that, recognizing the express mandate to hold an inquest where death is suspected to have been caused in the course of police operations (s 13A(1)(b)), it would be a strange result if those police officers involved in the relevant operations could decline to give evidence. 31 The argument of the defendants was founded, first, upon a proposition that what was conveniently termed penalty privilege was merely a rule of evidence rather than a substantive right. If its true character is the former, there is a collateral question as to whether it applies in coronial proceedings. 32 In Pyneboard Pty Ltd v Trade Practices Commission 1983 152 CLR 328 it was said in the joint judgment (Mason ACJ, Wilson and Dawson JJ) at 340: "The rule of the common law nemo tenetur seipsum accusare is seen as too fundamental a bulwark of liberty to be categorized simply as a rule of evidence applicable to judicial and quasi-judicial proceedings." 33 It was acknowledged that statements to similar effect, on occasions the subject of dissent, could be found in subsequent cases including Sorby; Morris; Controller-General of Customs v Disciplinary Appeal Committee and Day 1992 35 FCR 466 and Environment Protection Authority v Caltex Refining Co Pty Ltd 1993 178 CLR 477. But it was submitted that these statements should be doubted in light of more recent pronouncements. In The Daniels Corporation International v Australian Competition and Consumer Commission 2002 213 CLR 543 in the joint judgment (Gleeson CJ, Gaudron, Gummow and Hayne JJ) their Honours said: "Today the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. However, there seems little, if any, reason why that privilege should be recognized outside judicial proceedings. Certainly, no decision of this Court says it should be so recognized, much less that it is a substantive rule of law." 34 That statement was recapitulated in Rich in the joint judgment (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) when their Honours added (at 142): "That is not to say that the privileges against exposure to penalties or exposure to forfeitures are substantive rules of law, like legal professional privilege, having application beyond judicial proceedings. In the present matter, however, the only issue is about the application of these privileges to discovery in judicial proceedings." 35 The references to the bifurcation in expressed views were made in support of the argument that, even if I came to the conclusion of miscarriage in the instance circumstances, I should further conclude that the objection could not be availed of in the Coroner's Court and therefore relief of any kind should be withheld. 36 I accept the plaintiff's submission that the "upshot" of accumulated dicta established no binding authority but I am mindful of the observation of Spigelman CJ in Rich before the Court of Appeal (2003 183 FLR 361) that the recent statement by four judges (in Daniels) conveyed a high level of persuasive force which is now fortified by the five judges of the High Court in Rich. 37 In the circumstances, this is not a determination which is required to be made in this case nor is it necessary to deliberate upon the unique characteristics of the Coroner's Court wherein there are neither parties nor pleadings and rules of evidence and which are conducted inquisitorially. 38 My reason for this opinion is based upon what I perceive to be the statutory construct provided by s 33 and s 33AA. As Mr Cogswell SC and Mr Zahra SC acknowledged, it may be possible to read the reference to "civil penalty" in s 33AA(1) as conferring a statutory right (subject to other succeeding subsections) to resist answering but I would construe the provisions upon the alternative which they proposed, that the enactment assumes that penalty privilege is available in the Coroner's Court and they operate to regulate the circumstances in which that privilege is abridged. 39 That preferred construction does not eliminate regard being had to the express proviso in s 33 "except in accordance with sections 33AA". An inevitable consequence would be that, although the plaintiff may be possessed of a certificate pursuant to s 33AA(2), it will be of no protection to the receipt of testimony which he has been compelled to give, if the Commissioner moves to exercise his power under the Police Act. 40 The legislative expression in s 33AA(4) is unambiguous and the "protection" extends no further than to "proceedings in a NSW court (within the meaning of the Evidence Act 1995)". NSW court is defined in the dictionary appended to the Act and obviously excludes the exercise of function by the Commissioner of Police. I comment that, were it the desire of the legislature to extend the protection provided by the certificate, there would be no inhibition upon so providing. 41 The plaintiff's argument, if accepted, involves the existence of a right outside of the scope of statute which would, as the defendants submitted, lead to the curious result that a witness who claimed penalty privilege, based upon the risk of civil penalty by a non-judicial authority would be in a better position than a witness who faced the risk of criminal charge in the sense that, although protected, the latter can be compelled to speak whereas the witness in the former situation need say nothing. 42 It is clear, of course, as the first defendant recognized, that he is vested with a discretion by the statute and it is an element of the risk which I have held to be a matter of material consideration which needs to be given weight in the exercise of discretion, that any certificate will be ineffective protection against the evidence given being used to impose civil penalty by the Commissioner. 43 It was necessary for the plaintiff to institute these proceedings and, although the relief is more limited than it would be if all aspects were successful, I consider that the costs should follow the event. The second and third defendants acted as contradictors to all the plaintiff's claims. I anticipate that the third defendant may be the recipient of a grant of legal aid and, should that require adjustment to the costs order, liberty to apply is granted. 44 (a) I declare that the first defendant erred in law in that part of his ruling as determined that the plaintiff was obliged to answer questions at the inquest into the death of Maxwell Phillips. (b) I direct that the matter be returned to the Coroner's Court in order that that ruling be determined according to law. (c) The second and third defendants are ordered to pay the plaintiff's costs of the summons.

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