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[2013] VSC 246
General information, not legal advice.
Supreme Court of Victoria
2013-05-16
KYROU J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Natural justice - Application to prevent a coroner from continuing with an inquest on the ground of apprehended bias - Whether coroner prejudged issues and the plaintiffs' credit by forming a belief under s 49(1) of the Coroners Act 2008 that the plaintiffs may have committed an indictable offence and by questioning their motives for seeking to give evidence under the protection of a certificate pursuant to s 57(5) of that Act - Application dismissed.
1 This is an application under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 for an order in the nature of prohibition to prevent the presiding coroner, Dr Hendtlass ('Coroner'), in the inquest into the death of Wayne Joannou ('Inquest') from continuing to conduct the Inquest.
2 The plaintiffs are Operators 16, 34, 41 and 64 of the Victoria Police Special Operations Group ('SOG'). With the Court's leave, they have commenced this proceeding other than in their individual names. The plaintiffs' principal ground for seeking relief is apprehended bias in the form of prejudgment of issues and of their credit.
3 It is not in dispute that: Mr Joannou had a lengthy and violent criminal history which involved firearms; that Mr Joannou was the suspect in the death of a Brian Bottomley; that Mr Joannou was shot dead on 18 February 2005 during an operation conducted by the SOG at South Melbourne for the purpose of arresting Mr Joannou; that Operator 41 was the team leader in relation to that operation; that each of the plaintiffs shot at Mr Joannou; and that the evidence suggests that the fatal shot was fired by either Operator 16 or Operator 41.
4 On the 15th day of the Inquest, 18 November 2011, with only the plaintiffs and two other witnesses yet to give evidence, the Coroner announced that she was of the belief that an indictable offence may have been committed in connection with the death of Mr Joannou. This announcement was made pursuant to s 49(1) of the Coroners Act 2008 ('Act'). Although the announcement did not identify whom the Coroner believed may have committed an indictable offence, it is common ground that it must have been one or more of the plaintiffs.
5 In accordance with s 49(1) of the Act, the principal registrar of the Coroners Court notified the Director of Public Prosecutions ('DPP') of the Coroner's belief. The Coroner adjourned the Inquest pending a decision by the DPP whether to prosecute any person.
6 On 17 October 2012, the DPP wrote to the Coroners Court advising that, in his opinion, there were no reasonable prospects of convicting any SOG member of any criminal offence. On 29 October 2012, the Coroners Court notified the interested parties that the Inquest would resume. However, the Inquest has remained adjourned pending the outcome of this proceeding.
7 As the Coroners Court proposed to limit its involvement in this proceeding in accordance with R v Australian Broadcasting Tribunal; Ex parte Hardiman,[1] I granted leave to the Attorney-General to intervene as a party to the proceeding so that there would be a true contradictor.
8 For the reasons set out below, I have concluded that although the Coroner made errors of law and inappropriate statements during the Inquest, her conduct does not warrant relief in the nature of prohibition.
Relevant provisions of the Coroners Act
10 Although inquests involve hearings, they are not conducted in the same manner as conventional civil proceedings in a court. There are no parties to an inquest and the rules of evidence do not apply.[3] Section 65 of the Act requires that inquests be conducted with as little formality and technicality as the interests of justice permit and in a manner that makes the inquest comprehensible. A presiding coroner 'may be informed and conduct an inquest in any manner that the coroner reasonably thinks fit.'[4] However a coroner conducting an inquest must accord procedural fairness to parties who appear at the inquest.[5]
(a) that a coroner should liaise with other authorities to avoid unnecessary duplication of inquiries and investigations, and to expedite the investigation of deaths;[6] and
(b) that, when exercising a function under the Act, a coroner should have regard to the fact that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death.[7]
12 Section 49(1) of the Act, to which I have already referred, is in pt 4 of the Act. The section provides as follows:
49 Notices and provision of information by principal registrar
(1) The principal registrar must notify the Director of Public Prosecutions if the coroner investigating the death or fire believes an indictable offence may have been committed in connection with the death or fire.
13 Although there are no parties to a coronial inquest, s 56 of the Act empowers a coroner to give a person leave to appear as an interested party if the coroner is satisfied that the person has a sufficient interest in the inquest and that it is appropriate for him or her to be an interested party. An interested party may appear at an inquest and may examine or cross-examine the witnesses and make submissions.[8]
15 Section 52(4) of the Act empowers a coroner to hold, adjourn or recommence an inquest.
16 Section 57 of the Act deals with the privilege against self-incrimination in relation to witnesses at an inquest. It provides as follows:
57 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving evidence, or evidence on a particular matter, at an inquest 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 under an Australian law or a law of a foreign country.
(2) The coroner 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 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.
...
(7) In any proceeding in a court or before any person or body authorised by a law of this 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) any information, document or thing obtained as a direct or indirect consequence of the person having given evidence -
cannot be used against the person. ...
67 Findings of coroner investigating a death
(1) A coroner investigating a death must find, if possible -
(a) the identity of the deceased; and
(b) the cause of death; and
(c) ... the circumstances in which the death occurred; and
(d) any other prescribed particulars.
...
(3) A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.
69 Findings not to contain statement regarding guilt
(1) A coroner must not include in a finding or comment any statement that a person is, or may be, guilty of an offence.
(2) Subsection (1) does not apply to prevent the inclusion in a comment of a statement relating to a notification to the Director of Public Prosecutions under section 49.
72 Reports and recommendations
(1) A coroner may report to the Attorney-General on a death ... which the coroner has investigated.
(2) A coroner may make recommendations to any Minister, public statutory authority or entity on any matter connected with a death ... which the coroner has investigated, including recommendations relating to public health and safety or the administration of justice. ...
73 Publication of findings and reports
(1) Unless otherwise ordered by a coroner, the findings, comments and recommendations made following an inquest must be published on the Internet in accordance with the rules.
(2) A coroner must order that a report about any documents, material or evidence provided to the coroner as part of an investigation or inquest into a death or fire is not to be published if the coroner reasonably believes that publication would -
(a) be likely to prejudice the fair trial of a person; or
(b) be contrary to the public interest. ...
18 The Coroner conducted an inquest into the death of Mr Bottomley prior to commencing the Inquest. Accordingly, the Coroner had some familiarity with the evidence that was relevant to the death of Mr Joannou.
19 At a pre-Inquest directions hearing on 16 March 2010, the Coroner gave leave to the plaintiffs to appear as interested parties. They were represented by Mr Lawrie of counsel. The Coroner also gave similar leave to the Chief Commissioner of Police (represented by Mr Gipp of counsel) and to a civilian witness, Ms O'Goerk (represented by Ms Trumble of counsel). Mr Goetz appeared as counsel assisting the Coroner.
20 During the directions hearing, the Coroner stated that she suspected homicide 'in the sense of someone killed Mr Joannou.' The Coroner stated that it was her practice to tell the persons most likely to be affected by the exercise of the referral power in s 49(1) of the Act 'as a matter of natural justice' and that, if she were to exercise the power, she would not do so until she was writing her findings at the end of the Inquest.
21 During the directions hearing, the Coroner stated that, if it is likely that self-incrimination issues will arise in relation to any witnesses, her practice was to place those witnesses at the end of the list of witnesses. The Coroner explained that the reason for her practice was to enable her to decide whether, at the stage that those witnesses are due to give evidence, there is sufficient evidence from other sources to enable her to excuse those witnesses from giving evidence rather than giving them a certificate under s 57(5) of the Act and forcing them to give evidence. When Mr Lawrie informed the Coroner that the plaintiffs would be making an application under s 57, the Coroner said that 'they would have to be last ... so that I can see whether I really need to hear from them.'
22 At a further directions hearing on 25 March 2011, the Coroner indicated that each of the plaintiffs would be required to give evidence.
23 The Inquest commenced hearing evidence on 30 May 2011. The hearing was conducted over 15 days, namely from 30 May 2011 until 23 June 2011 and from 17 November 2011 until 18 November 2011.
24 On 22 June 2011 the following discussion took place between Mr Lawrie and the Coroner about the granting of certificates to the plaintiffs under s 57(5) of the Act:
Mr Lawrie: My current instructions are ... that in order to ... engage the mechanisms under s 57 there needs to be a formal objection based upon the potential for self incrimination. That objection is taken on behalf of each of my four clients.
The Coroner: That's a relief.
Mr Lawrie: And in those circumstances it's my submission that a certificate pursuant to that section would issue either - if Your Honour finds first of all that there is a reasonable basis for the making of the objection - - -
The Coroner: I think you can take it that I do.
Mr Lawrie: I would hope that that would be reasonably uncontroversial.
The Coroner: At this stage in the evidence - it's just whether I issue the certificates or think that at least one if not two of them should actually be excused.
...
If we put them all on and we take their evidence as though it was certificates and say this is a group thing, which is, from a systems point of view, that's what it is, then that's one thing. When we look at why I have to know enough to be putting people - to be reporting this matter up, then - and there's no doubt in the sort of incident, there are real implications, then if I put somebody in the witness box who will be severely disadvantaged in another jurisdiction, then that is really something I don't want to do if I can help it.
25 Operators 16 and 41 were due to give evidence on the 14th day of the Inquest, 17 November 2011, and Operators 34 and 64 were due to give evidence on 18 November 2011.
26 On 17 November 2011 a discussion took place between Mr Lawrie and the Coroner about the granting of certificates to Operators 16 and 41 under s 57(5) of the Act. Prior to this time, the Coroner had heard evidence that the bullet that caused Mr Joannou's death had been discharged from the firearm of either Operator 16 or Operator 41. The Coroner requested that those Operators be in Court so that she could explain the structure of s 57 to them. The following exchange took place:
Mr Lawrie: Your Honour, in respect of [Operators 16 and 41] I make an application pursuant to s 57. In order to commence the operation of s 57 there needs to be a formal objection to giving evidence. And ... once that objection is made it falls to Your Honour to make a finding whether or not there are reasonable grounds for the making of the objection and if you are so satisfied then one moves on into the next part of structure of the section.
The Coroner: I agree. But they have to actually agree with the objection. So even if you do the words I expect them to each separately agree with the objection.
Mr Lawrie: I'm certainly content with that process, Your Honour. So on the basis of the potential for self incrimination, and I don't think it needs to be said explicitly what the potentials are, the range of potential outcomes can be many and varied. For example, we've seen examples where s 25 of the Occupational Health and Safety Act has been the relevant statutory stricture that has come into play. ... And it's with an abundance of caution that I say that both these men have indicated to me a desire to object to giving evidence and ask Your Honour to make a ruling as to in the circumstances of this case whether or not that objection is based upon reasonable grounds.
The Coroner: Do you agree with that?
Voice (From Body Of Court): Yes, I do.
The Coroner: Agree with that?
Voice (From Body Of Court): Yes - - -
The Coroner: On the grounds that the legislation says that I should accept the reasonable grounds if the evidence that you may give - may give - may tend to prove that you have committed an offence or are liable to a civil penalty, so it isn't only criminal offences, are there reasonable grounds for the objection. That's what I have to determine. My understanding from the evidence so far is that the fatal shot was associated with the bullet particle ... found in Mr Joannou's brain. Accepted? Do you accept that?
Mr Lawrie: Yes, I do.
The Coroner: I then have to determine whether or not either or both of you may have or did not discharge that bullet that was in his brain, at least in terms of the highest level offence that might be considered. I have no doubt at all that every single person at that scene could have been found - have made objections and asked for a certificate on the grounds of the Occupational Health and Safety Act. I'm not even considering that level. I'm talking about killing Mr Joannou. OK.
As far as I'm concerned, what I also need to understand is what defences will protect this witness from prosecution for these offences. In the sense the offences that they may - if you gave evidence you may find you provide evidence for. So those are the issues. And I rely on Odgers, and that's the case law in relation to the operation of this, almost exactly, if not exactly, provision in the New South Wales where it's been working for much longer than here.
You do not need to give evidence unless I require you to. I'm going to consider the following issues, the first of which is very important. It's the severity of offences that you may expose yourself to and the defences that I think you may be able to use if you were charged with the offences. From my perspective, a man has died, therefore the offences are very severe. The defences, at least the self defence issue, I am of the view is not something for me to decide. It's something to be decided in the Supreme Court if the charges were laid and if you then faced that prosecution.
The second thing which I have to consider is the importance of your evidence in these proceedings so that I can fulfil my requirements. Very important as well. And from my perspective, I have formed the view that having looked at what we've already heard from the witnesses from SOG and other parts of the police force in particular and other witnesses who were at the scene, and having looked at - knowing that we've got two more witnesses who were not people who could have possibly fired the shot that was the fatal shot, that your evidence is at this stage not important but I retain the right to be able to change that if I find I need to.
I have to consider the possibility that there are criminal and disciplinary proceedings that may proceed and in particular I'm worried about the criminal proceedings. And I'm particularly concerned about the provision of s 57 of our Act which prevents admission of evidence in other courts derived from evidence given in this court under protection of a certificate. That means that if you give evidence now, that evidence cannot be used in another court, and on top of that, evidence derived from that evidence cannot be used in another court.
So for all of those reasons it's in the interests of justice that I do not consider that I should require you to give evidence.
27 A discussion then took place about the Coroner's discretion to decide who is called as a witness. Mr Lawrie submitted that the plaintiffs were 'indisputably central to [the Inquest]' and that all four should be called because they were willing to give evidence under the protection of a certificate pursuant to s 57(5) of the Act. Mr Lawrie submitted that the Coroner could not differentiate between Operators 16 and 41 on the one hand and Operators 34 and 64 on the other hand because 'all four men [were at the scene of the fatal shooting] as part of a team with a common purpose.' The following exchange then took place:
The Coroner: I disagree with you for two reasons. The first is, as you've said, and I've said, it's my decision. The second is that what I have already said to these men, and it's with great respect, that I'm not going to give them a certificate today and I'm not going to call them, but if after I have heard all the evidence I need to then I will. OK.
Because I think there are two reasons against excusing them completely. The first is that I'm wrong in the sense that the evidence that they will give me will not add sufficiently to what I already have and will get from the other two witnesses and from their bosses next week, the policy people.
Mr Lawrie: Yes.
The Coroner: It may be that at the end of that I say to myself when I'm balancing things - and this is always a balancing issue - I really need those chaps. OK. At the moment I don't think I do. The second is that in the interests of justice the negative side of the section which says that the evidence cannot be used elsewhere if I give a certificate or even if I don't give a certificate the evidence can't be used elsewhere means that the information that does come that may tend to incriminate, which is what they've already said it might do, cannot be used elsewhere.
And I think it's really important to be able to give the criminal prosecutors in particular, but also maybe the OH&S and all the other offences in the whole continuum, the opportunity. If this man hadn't have died it would have been a different issue. But one of these two guys - and I don't know which one - and it's really good for me that there are two of you, it's not just one - has shot the fatal shot that creates this offence being so serious as against being less serious in the scheme of things down the thing. If we hear evidence from them then that evidence cannot be used elsewhere.
Mr Lawrie: That's correct. Nor anything that derives from it.
The Coroner: And that's the worst part, is nor anything that derives from it. So it shuts it down completely. And I'm not prepared to do that in the interests of justice unless I have to do it in order to fulfil my obligations as Coroner. And they're really clear in terms of the circumstances, the cause of death we know, the identity we know, the time and place of death we know.
The circumstances are the only issue which these men can contribute to, as far as I'm concerned. And as I see it at the moment with what I can see coming and what we've already had I don't think I need that evidence when I balance it against the interests of the justice issue.
Now, the other thing I need to say - and I say this to you personally - I understand how you feel about wanting to give evidence. I have had at least four times when I've excused policemen for various reasons, usually under the Occupational Health and Safety Act, their - usually their superintendents or similar, when I meet them somewhere coming to me and saying, 'I had terrible trouble with that case because those guys wanted to tell me what had happened, they wanted to make sure that they were on the record exactly and then there was no other way in which that could happen.'
I don't do it lightly. I don't do it in a way that means I don't take that into account at the personal level. But from my perspective, the defences are not something for me to decide. They are not part of the circumstances, because I can't assess it at the level at which a jury would assess it. And so I don't want to compromise that.
28 Mr Lawrie then submitted that the Coroner would be denying Operators 16 and 41 natural justice if she did not permit them to give evidence under the protection of a certificate pursuant to s 57(5) of the Act. The Coroner responded as follows:
The Coroner: You realise I'm not allowed to make any findings in relation to whether or not anyone has committed an offence?
Mr Lawrie: I absolutely understand that. Your Honour is prohibited - of course the referral power remains - - -
The Coroner: Referral, yes.
Mr Lawrie: - - - but Your Honour cannot announce it.
The Coroner: Yes. And that is a really serious issue, the referral power.
Mr Lawrie: Yes.
The Coroner: I understand that. And my view is that at the moment, given all of what we've got, they're in the position where they have been afforded natural justice in the sense that they've made statements. And as far as I'm concerned, I don't think I need to go beyond that at this stage further than explain to them why I'm doing what I'm doing - which I am explaining to you and I'm happy to answer questions in that sense. But from my perspective it's really important not to influence what might happen subsequently.
29 Mr Gipp then made submissions on behalf of the Chief Commissioner of Police which, in essence, supported the submissions of Mr Lawrie. The Coroner responded as follows:
The Coroner: I disagree with you. The reality is that one of the main reasons for s 57 was the Occupational Health and Safety Act. The unintended consequences of the amendments - and if you go back to when you and I started, it was before the new Occupational Health and Safety Act when those indictable offences were put in there. And at that stage the Coroners Act included only indictable offences.
But now this means that it covers all the offences including the civil ones. And my view is that I will be compromising the interests of justice by hearing evidence from these people both generally and specifically unless I absolutely need it for my own purposes.
Now, in terms of the evidence because of how long it is since it's happened, because of the fact that we've had all these other witnesses who've been very helpful and useful, because we've still got two more who I will give certificates if they apply in the same way tomorrow, because we know that their weapons did not kill Mr Joannou, and then we'll see what happens with the policy people next week. But at the moment I don't think I need to hear from these people right now. If I do need to then I'll still call them and give them a certificate.
30 The Coroner then took the unusual step of asking Mr Lawrie to explain the reasons why Operators 16 and 41 desired to give evidence. Mr Lawrie explained in general terms that his clients had a genuine desire to 'tell the story' and to have the benefit of being heard in accordance with the rules of natural justice before any adverse findings or comments were made. The following exchange then took place:
The Coroner: And can I ask them the question.
Mr Lawrie: Please.
The Coroner: Is there anything else you want to add?
Voice (From Body Of Court): No, Your Honour.
The Coroner: Well, I stick by what I say and that is that I will reconsider the whole matter when I've heard the rest of the evidence but as it stands at the moment I'm not going to call these two men for the reasons I've said. And I understand all of the things Mr Lawrie has just said about the fact that you want to give evidence. It's not the first time I've heard this, both personally and from other people in different circumstances. I understand your job pretty well and I understand why you want to give evidence, at least at that level. But sometimes I'm concerned about the implications of it.
31 Mr Lawrie and Mr Gipp then inquired whether the Coroner could provide a written ruling or, in the absence of such a ruling, expedited transcript. Mr Gipp expressly stated that he wanted to obtain instructions 'about whether that is something that needs to be taken further.' The following exchange then took place:
The Coroner: OK. Would you want that to happen before we finish and I finish deciding, definitely decide not to call these men after that, given that if you want to take it further you need to take it further before - you can't really take it further until it's finalised?
Mr Gipp: Your Honour's indication is that - - -
The Coroner: I'm quite happy - - -
Mr Gipp: - - - Your Honour's ruling tomorrow will be that the other two operators will be granted certificates and then be required to give evidence.
The Coroner: I expect. I expect.
32 The Coroner then invited submissions from Mr Goetz. The following exchange then took place:
Mr Goetz: It's probably not my role to urge Your Honour to call certain witnesses. Your Honour's determined that prior to this beginning. And I'm just wondering whether we'd be having this discussion if these witnesses had been left off the witness list, whether my learned friends would have gone off to another location to insist that they come - but leaving that to one side, had they been left off the list then who knows what would have taken place. ... Ultimately it's a matter for Your Honour as to whether you think you can discharge your duties by calling certain witnesses. If Your Honour thinks that you can do your job without hearing from certain witnesses then so be it. And that seems to be what Your Honour has said to my learned friends. You've also, of course, added that you're undecided about whether you will allow them to give evidence. You've not determined that, you'll determine that when - - -
The Coroner: Well, I've determined it subject to.
Mr Goetz: Subject - thank you, Your Honour.
The Coroner: - - - seeing the gap if I need to.
Mr Goetz: Yes. I'm not sure that there are any other matters that I can place before Your Honour. It would just be simply repeating - - -
The Coroner: Now we're getting it again. Yes, here we go.
Mr Lawrie: I can't let something go unmet, Your Honour. Your Honour's assistant has posed the hypothetical what would happen if my four clients were not on the witness list, would I be going to some other place to remedy that defect. That is - - -
The Coroner: Hypothetical.
Mr Lawrie: Hypothetical, and in my respectful submission, uncalled for. I have been explicit in what I have said is the motivation for these witnesses having a desire to give evidence and sensibly and naturally also desiring the protection of the certificate at the same time. Your Honour has asked permission from me in a sense to be able to address these two men directly on that point and I've invited Your Honour to do it and Your Honour has done it.
To circle back - for Your Honour's learned assistant to circle back and suggest in a backhanded way that there is cleverness behind this application and perhaps we wouldn't see it being made if we had this hypothetical situation of them not being on the witness list at the start is completely improper and any suggestion of the kind is resisted in the strongest terms, Your Honour.
The Coroner: I hear you.
Mr Gipp: Can I just respond.
The Coroner: You can say ditto.
...
Mr Gipp: We've always operated on the basis in this case that all of the operators listed on the witness list were considered by Your Honour to be witnesses who will be of benefit to Your Honour in reaching a view about this particular matter. There's been nothing to indicate that Your Honour has changed your mind about that.
What Your Honour has indicated in all of your reasons this afternoon is whether or not you're going to require them to give evidence because of the difficulties associated with privilege against self incrimination. What my learned friend here is now saying is that well - - -
The Coroner: And the interests of justice.
Mr Gipp: And the interests of justice. But going back an earlier step is Your Honour going to not require these witnesses to give evidence, the four operators who discharged their weapons, because you no longer consider that they will be necessary as part of the process of conducting an inquest. Now, I don't think there's been any indication by Your Honour that you've formed that view.
The Coroner: Yes, there is.
Mr Gipp: That you don't need them for the purposes of the inquest?
The Coroner: Absolutely is part of that is particularly in relation to these two witnesses. And that's where I have the difficulty with what you're saying about it's all right if I excuse all four, effectively, but not separating them. I understand what you're saying about the concert issue, but the other side of it is that the other two witnesses may be able to give evidence which means that these guys are totally unnecessary, or not so much even that, but if after I've heard the other two witnesses I still think there is information that is necessary to hear then I'm leaving open that door to call them.
33 At the end of the hearing on 17 November 2011, the following exchange took place:
The Coroner: And what do you say about the fact that the evidence that they give is not able to be admitted in another court?
Ms Trumble: Well, I agree with Mr Lawrie in that I don't think that is a relevant consideration in terms of excluding them as witnesses. ... My concern is that it's always been the case that these members would give evidence and the inquest has proceeded on that basis. ...
The Coroner: Thank you. OK. Go home tonight and we'll hear from the other two tomorrow. And I'll make a decision in the morning about them. But at the moment I know what I'm thinking, but I might change my mind.
Mr Lawrie: Certainly.
The Coroner: And then I'll review what I do about you guys, but I'll take your application as having been made. And if I'm not going to call you I'll do a formal ruling about why not. That's what you're really asking for, isn't it?
Mr Lawrie: Yes, thank you, Your Honour.
The Coroner: Thank you.
34 At the commencement of the hearing on 18 November 2011, the Coroner made the following announcement:
The Coroner: Now, I understand that you have been told that I, having heard all of the evidence to date and your submissions, I have now decided that I form the belief that requires me to act under s 49, so accordingly I adjourn this matter sine die while that happens. Thank you.
35 As discussed at [6] above, following the decision of the DPP that there were no reasonable prospects of convicting any SOG member of any criminal offence in relation to the death of Mr Joannou, the Coroners Court informed the interested parties that the Inquest would resume. On 30 November 2012, the plaintiffs notified the Coroners Court that they would make an application that the Coroner recuse herself on the ground of apprehended bias. This application was heard on 6 February 2013 and was supported by the Chief Commissioner of Police. In a detailed written ruling dated 21 February 2013 ('Ruling'), the Coroner refused to recuse herself. In the Ruling, the Coroner made statements which are the subject of three grounds of review. I will discuss the statements in the context of the three grounds of review.
37 The test of apprehended bias is an objective test, which applies to all sources of such bias, including prejudgment. In Ebner v Official Trustee in Bankruptcy,[13] the High Court set out the test as follows:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver ... or necessity ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[14]
38 The issue of whether a judicial officer might not bring an impartial mind to the resolution of a question that has not yet been determined does not require a determination about how the matter will in fact be approached. The test is one of possibility, and not probability.[15]
objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question.[18]
40 The application of the test of apprehended bias involves two steps. The first step is to identify the matter that is said might lead a judicial officer to decide a case other than on its legal and factual merits. The second step requires an articulation of the logical connection between that matter and the 'feared deviation from the course of deciding the case on its merits.'[19]
41 The fair-minded lay observer is a hypothetical figure, who is taken to have a broad knowledge of the material objective facts as ascertained by the appellate or reviewing court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the relevant decision-maker.[20]
42 The hypothetical observer should be assumed to base his or her opinion on a fair assessment of the whole of the judicial officer's conduct in the context of the whole trial or inquiry.[21]
43 In some cases, the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. On the other hand, some statements or behaviour can produce an ineradicable apprehension of prejudgment. The circumstances of the particular case, and the context in which a later statement was made, will determine whether a preliminary impression may be altered by the later statement.[22]
44 Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.[23] Judges may express tentative views in exchanges with counsel, and are not on that account alone to be taken to indicate prejudgment.[24] Likewise, the making of an interlocutory finding in a proceeding does not, in itself, preclude a judge from sitting on the trial of that proceeding.[25] However, judges must remain open to persuasion based on the evidence and submissions of the parties.[26]
45 The reasonableness of any suggested apprehension of bias must be considered in the light of ordinary judicial practice and procedure, the nature of the functions performed by the decision-maker and the particular statutory context.[27] In relation to the Coroners Court, regard must be had to its inquisitorial nature and the statutory departures from the judicial paradigm.[28]
46 In Firman v Lasry,[29] Ashley J stated that if the conduct of counsel assisting a Royal Commissioner was or reasonably appeared to be partial and the Commissioner appeared to condone that conduct, then the hypothetical observer might reasonably apprehend partiality on the part of the Commissioner.[30] Ashley J gave the following example of such conduct:
if the conduct of counsel assisting showed an evident and persisting inequality of treatment as between witnesses espousing one view of matters under inquiry and witnesses espousing [an] opposing view, if one group of witnesses was apparently aided in giving its account of events whilst the other group was apparently frustrated in its attempts, and if a Commissioner either gave support to or took no action to redress the situation which unfolded before him, it would not be wrong to consider that support or inaction if an allegation of apprehended bias on the Commissioner's part was raised by an individual whose conduct was under scrutiny. Whether a conclusion adverse to a Commissioner might then be drawn must depend upon the particular circumstances.[31]
47 When comments are made which are likely to convey an impression of bias to a fair-minded lay observer, a party is not entitled to stand by until the contents of the final judgment are known, and then, if the contents are unpalatable, to attack the judgment on the ground that there has been a failure to observe the requirement of an appearance of impartial judgment.[32] A litigant who is aware of the circumstances entitling him or her to object on the ground of apprehended bias and who fails to do so, waives the right to object at a later time.[33] Both the timing and the nature of any objection made are relevant to the question of whether a party has waived a right to object on the ground of apprehended bias.[34]
Preliminary issue: Reliance on Coroner's reasons for refusing to recuse herself
48 Before turning to the grounds of review, it is necessary for me to discuss a preliminary issue, namely, whether any reliance can be placed on the Coroner's reasons for refusing to recuse herself, in deciding whether the plaintiffs have made out a reasonable apprehension of bias.
49 The plaintiffs and the Attorney-General submitted that it is permissible for this Court to take into account the Coroner's reasons in applying the test of apprehended bias.
50 In Johnson,[35] during the course of a bitterly contested dispute in the Family Court over the distribution of matrimonial property, the trial judge said that he would principally rely on the evidence of independent witnesses and on the documentary evidence to determine where the truth lay. On the following day, the husband, who had not yet given evidence, requested the judge to disqualify himself on the basis that his comments constituted a concluded view as to the credit of the parties. The judge declined to disqualify himself and explained that what he meant on the previous day was that the wide divergence between the positions of the parties gave rise to a need to look to other evidence to assist in determining which party was telling the truth. The High Court concluded that what the judge had said, when considered in context and in the light of the subsequent explanation, did not warrant an apprehension that he had formed a concluded view on the credibility of the parties.[36]
51 In my opinion, Johnson can be distinguished from the present case, where the Coroner's reasons for refusing to recuse herself were published well over a year after the events that were said to give rise to a reasonable apprehension of bias. As the test for determining whether the conduct of a judicial officer has given rise to a reasonable apprehension of bias is based on the impression that might be formed by a fair-minded lay observer of the events in question, the Coroner's subjective interpretation of those events so long after they occurred cannot assist me in the application of the test. In any event, as this proceeding is not an appeal, it is this Court's application of the test that is determinative rather than whether the Coroner applied it correctly or erroneously. Accordingly, I have not relied on the Coroner's reasons in considering whether the plaintiffs had made out a case for a reasonable apprehension of bias.
52 The first ground of review was that the Coroner erred in refusing to disqualify herself for apprehended bias.
53 The second ground of review was that the Coroner erred in ruling that she had not acted in a manner during the Inquest which would give rise to a reasonable apprehension of bias. The plaintiffs relied upon the following particulars:
(i) On 18 November 2011, prior to hearing evidence from the plaintiffs and prior to submissions on behalf of the parties, the [Coroner] announced that the subject matter of the inquest was to be referred to the [DPP] pursuant to s 49 of the [Act] ('the referral').
(ii) A fair-minded lay observer might reasonably apprehend, as a consequence of the announcement of the referral, that the [Coroner] might not bring an impartial and unprejudiced mind to the issues relating to the plaintiffs' conduct in respect of [Mr Joannou].
(iii) On 17 November 2011 the [Coroner] implied that the plaintiffs were making application for certificates pursuant to s 57 of the [Act] for improper or collateral purposes.
(iv) A fair-minded lay observer might reasonably apprehend, as a consequence of such imputation, that the [Coroner] might not bring an impartial [mind] to the issues relating to the plaintiffs' conduct in respect of [Mr Joannou] and, particularly, to any assessment required to be made of the plaintiffs' credit.
54 The plaintiffs' principal submissions were twofold. First, the Coroner's exercise of the referral power in s 49(1) of the Act without first hearing their evidence created a reasonable apprehension that she had prejudged their criminal involvement in the death of Mr Joannou and the other issues that she had to determine. Secondly, by questioning the plaintiffs' motives in seeking to give evidence under the protection of a certificate pursuant to s 57(5), the Coroner prejudged the plaintiffs' credit.
55 The plaintiffs emphasised the following conduct of the Coroner:
(a) The Coroner's failure to follow what she stated at the first directions hearing was her usual practice, namely to defer referrals under s 49(1) of the Act until the end of an inquest when she prepared her findings.
(b) By exercising the referral power in s 49(1) of the Act immediately before the plaintiffs were due to give their evidence and prior to final submissions, the Coroner publicly announced that she had formed a belief that one or more of the plaintiffs may have committed an indictable offence in connection with the death of Mr Joannou.
(c) Although the Coroner did not identify the indictable offence that was the subject of the referral to the DPP, there was no doubt that the Coroner had in mind either murder or manslaughter.
(d) The Coroner's comments in relation to the circumstances in which a certificate should be granted under s 57(5) of the Act indicate that she took into account an irrelevant consideration, namely the effect of granting a certificate on the scope of the evidence to be given at a subsequent criminal trial.
(e) The Coroner's conduct in bypassing counsel for the plaintiffs, Mr Lawrie, and addressing the plaintiffs directly on their reasons for wanting to give evidence.
(f) The Coroner's failure to disassociate herself from the conduct of counsel assisting, Mr Goetz, in seeking to cast doubt on the plaintiffs' professed desire to give evidence by implying that they would not have sought orders to compel the Coroner to call them as witnesses if they had not been included on the witness list.
56 The Attorney-General emphasised that the issue in this proceeding was not whether the Coroner had breached the hearing rule of natural justice or had made other errors of law in relation to the referral under s 49(1) of the Act, as the plaintiffs had not sought judicial review of that decision. Rather, the issue was said to be whether the application of the two step process for determining whether there was a reasonable apprehension of bias disclosed such an apprehension.
57 The Attorney-General submitted that while some aspects of the Coroner's conduct may have been unusual, she had acted in accordance with the Act and had not said or done anything that would give rise to a reasonable apprehension of bias.
58 The Attorney-General contended that there was nothing untoward about the fact that the Coroner exercised the referral power under s 49(1) of the Act during the course of the Inquest rather than at the end of the Inquest. The Attorney-General pointed out what were said to be two significant differences between s 49(1) and the equivalent provision, s 21(3), in the Coroners Act 1985 ('Previous Act').
59 The first significant difference to which the Attorney-General referred was the stage at which a referral could be made. Under s 21(3) of the Previous Act, a report to the DPP could be made only at the end of an inquest. In comparison, s 49(1) of the Act contains no temporal limitation.
60 The second significant difference to which the Attorney-General referred was the nature of the belief that was a prerequisite to the exercise of the referral power. Under s 21(3) of the Previous Act, a coroner had to report to the DPP if the coroner believed that an indictable offence 'has been committed'. In comparison, under s 49(1) a coroner must form a belief that an indictable offence 'may have been committed'.
61 The Attorney-General submitted that the Inquest was unusual because the circumstances in which Mr Joannou had died were known and it was common ground that Mr Joannou's death had been caused by one of the plaintiffs. In those circumstances, so it was said, it was open to the Coroner to form a belief under s 49(1) of the Act without hearing the evidence of the plaintiffs, thus obviating the need for a certificate under s 57(5).
62 The Attorney-General contended that, read in context, the Coroner's questions about the plaintiffs' reasons for wanting to give evidence did not indicate a distrust of their motives but rather a desire to take into account the effect that a certificate under s 57(5) of the Act might have on a subsequent criminal trial. The Attorney-General submitted that this was a relevant consideration under the 'interests of justice' criterion in s 57(4)(b). According to the Attorney-General, even if it could be said that the Coroner questioned the plaintiffs' motives, a fair-minded lay observer would not translate that into a reasonable apprehension that the Coroner might not assess on its merits the veracity of any evidence that the plaintiffs were to give.
63 Although a coroner conducting an inquest is not in the same position as a judge presiding over the hearing of a civil proceeding with all the trappings of the adversarial system, nevertheless the coroner is performing a function as a judicial officer and must conduct himself or herself as such. This means that the coroner must remain temperate and even-handed throughout the inquest.
64 In the present case, the Coroner made several sarcastic and flippant comments which were distracting and unhelpful. The Coroner's use of informal and familiar language such as 'guys' and 'chaps' to describe the plaintiffs was inappropriate. So was the Coroner's tendency to bypass Mr Lawrie and to address the plaintiffs directly, except when she explained the matters set out in s 57(3) of the Act.[37] Also, the Coroner should not have requested Mr Lawrie to disclose the reasons for the plaintiffs' desire to give evidence.
65 The matters to which I have referred at [64] above might have caused a fair-minded lay observer to wonder whether the Coroner's conduct was unusual, but not to apprehend that the Coroner might have prejudged any issue that she was require[38]to decide.38 There was simply no logical connection between the over-familiar and over-zealous approach of the Coroner and any prospect that she might perform her duties, insofar as they affected the plaintiffs, in a manner that lacked impartiality.
66 The manner in which the Coroner decided to exercise the power under s 49(1) of the Act adversely to the plaintiffs is a cause for concern. This is because the decision was made in the course of the Inquest just prior to the time at which the plaintiffs were due to give evidence, notwithstanding that:
(a) the Coroner announced at the first directions hearing that it was her usual practice not to exercise the referral power in s 49(1) of the Act until the end of an inquest;
(b) the Coroner had determined that there were reasonable grounds for the plaintiffs' objection under s 57(1) of the Act, the plaintiffs had stated that they were keen to give evidence subject to receiving a certificate under s 57(5), and it appeared that all of the requirements for the granting of such a certificate had been met;
(c) the plaintiffs' evidence would have been highly relevant to the circumstances of Mr Joannou's death and on the question of whether the plaintiffs may have committed an indictable offence in connection with that death;
(d) the Coroner had indicated that, while she would not grant a certificate under s 57(5) of the Act to Operators 16 and 41, she would grant a certificate to Operators 34 and 64 to enable them to give evidence; and
(e) the Coroner's announcement on the morning of 18 November 2011 of the exercise of the referral power under s 49(1) of the Act was entirely unexpected and departed from the path set for the Inquest on the previous day.
67 In these circumstances, there can be no doubt that the most appropriate course would have been for the Coroner to grant certificates to the plaintiffs under s 57(5) of the Act, hear their evidence, any other remaining evidence and the submissions of the interested parties, and then make a decision on whether to exercise the referral power under s 49(1) at the time of making her findings in accordance with her usual practice. There was no imperative for the Coroner to depart from her usual practice and to exercise the referral power unexpectedly on the morning of 18 November 2011.
68 Section 49(1) of the Act does not contain a temporal limitation on when the referral power can be exercised. However, as s 69(2) of the Act has the effect that the power can be exercised at the time that a coroner makes his or her findings, it is clear that the power need not be exercised immediately upon a coroner forming the belief referred to in s 49(1) in the course of an inquest. In my opinion, once an inquest commences, it would be expected that the referral power would normally not be exercised adversely to an interested party who desires to give evidence until at least after the conclusion of that party's evidence and submissions.
69 Before me, there was some debate about whether the circumstances to which I have referred at [66] above constituted a breach of the hearing rule of natural justice. I agree with the Attorney-General that, while that question may have been relevant if the plaintiffs had sought to challenge the validity of the Coroner's decision to exercise the referral power in s 49(1) of the Act, it is not an issue that arises for determination in the present proceeding. However, the facts underlying that question may have a bearing on whether a fair-minded lay observer might reasonably apprehend that the Coroner might not bring an impartial mind to the resolution of the issues that she was required to decide.
70 In the present case, the apprehended bias test must be applied to the circumstances that prevailed on 17 and 18 November 2011. The Coroner's decision to exercise the referral power in s 49(1) of the Act on its own would not satisfy the test. There are two reasons for my conclusion. First, as discussed above and below, nothing that the Coroner said or did prior to 18 November 2011 could possibly have caused a fair-minded lay observer to reasonably apprehend that the Coroner might not exercise the referral power impartially. Secondly, the Coroner's exercise of that power itself could not reasonably give rise to a concern about prejudgment of anything that the Coroner might be required to decide in the future about the plaintiffs. It was simply a referral to another decision-maker, the DPP.
71 There was considerable argument before me about whether a belief under s 49(1) of the Act is 'provisional' or 'interlocutory' in nature and therefore incapable of giving rise to a reasonable apprehension of bias. In my opinion, although the belief is not couched in definitive terms - the phrase is 'may have been committed' rather than 'has been committed' - there is nothing provisional or interlocutory about the exercise of the referral power under s 49(1) based on such a belief. Once the referral is made, it takes its course and places the matter in the hands of the DPP.
72 However, the nature of a referral under s 49(1) of the Act and the criterion for its exercise have the potential to make it difficult to apply notions of prejudgment. Once a referral is made to the DPP, the relevant inquest is usually adjourned pending the DPP's decision whether to prosecute any person. The presiding coroner has nothing to do with the DPP's decision. If the DPP decides not to prosecute any person, the coroner may resume the inquest and complete any remaining steps, such as the hearing of further evidence and submissions and the exercise of the powers in pt 6 of the Act. While theoretically it would be open to the coroner to exercise the referral power again in respect of the same person, in practice, the prospect of that occurring would normally be low.
73 In the present case, following the DPP's decision not to prosecute any person, the Coroner resumed the Inquest. It may be accepted that, if the Coroner decides to grant certificates to the plaintiffs under s 57(5) of the Act and to hear their evidence, her assessment of the plaintiffs' credit could inform the exercise of her powers under pt 6. The mere fact that the Coroner exercised the referral power in s 49(1) adversely to the plaintiffs, however, could not reasonably indicate that she might not assess the veracity of the plaintiffs' evidence impartially and on its merits or that she might lack impartiality in exercising her powers under pt 6. In exercising her powers under pt 6 of the Act, the Coroner would be expected to have regard to the DPP's decision, which was favourable from the plaintiffs' perspective.
74 The plaintiffs' challenge to the impartiality of the Coroner was not based solely on the exercise of the referral power in s 49(1) of the Act. The plaintiffs also relied on statements made by the Coroner which were said to indicate suspicion about the plaintiffs' motives for wanting to give evidence and thus to contribute to a reasonable apprehension of bias.
75 In my opinion, a fair reading of the transcript does not bear out the plaintiffs' allegation that the Coroner was suspicious of their motives for wanting to give evidence. Rather, the transcript indicates that the Coroner was keen to determine whether the giving of evidence by the plaintiffs under the protection of a certificate pursuant to s 57(5) of the Act might prejudice a subsequent criminal trial because of the direct and derivative use immunities conferred by s 57(7). Evidently, the Coroner was of the view that this was a relevant consideration under s 57(4)(b).
76 The plaintiffs submitted that the Coroner's view about the relevance of the impact of a certificate under s 57(5) of the Act on a subsequent criminal trial, was erroneous. The Attorney-General, on the other hand, contended that the Coroner's view was correct.
77 The structure of s 57 of the Act suggests that s 57(4) only applies where a witness is not willing to give evidence. If this is so, then even if the impact of a certificate under s 57(5) is relevant to the interests of justice criterion in s 57(4)(b), that criterion does not apply where a coroner determines that there are reasonable grounds for a witness's objection and where that witness is willing to give evidence without being required to do so. Accordingly, as the plaintiffs were willing to give evidence, it appears that the Coroner should not have concerned herself with the impact of a certificate under s 57(5) on a subsequent criminal trial.
78 However, it is not necessary for me to decide the above issues because any error by the Coroner in construing and applying s 57 of the Act cannot give rise to a reasonable apprehension of prejudgment about the exercise of the referral power in s 49(1) or any other matter that might be decided by the Coroner in the future about the plaintiffs. The mere making of an error of law does not necessarily demonstrate prejudgment.[39]
79 My conclusion would remain the same even if, contrary to my opinion in [75] above, the Coroner was suspicious of the plaintiffs' motives for wanting to give evidence. If the Coroner was in fact of the view that, by giving evidence under the protection of a certificate pursuant to s 57(5) of the Act, the plaintiffs were seeking to obtain a collateral advantage in any subsequent criminal trial, this would not indicate to a fair-minded lay observer that the Coroner might treat the evidence that the plaintiffs gave as untrue.
80 A suspicion about the plaintiffs' motives for wanting to give evidence under the protection of a certificate pursuant to s 57(5) of the Act cannot logically be equated with a suspicion about the veracity of the evidence to be given following the granting of such a certificate. A certificate cannot be obtained unless there are reasonable grounds for an objection that the evidence to be given by a witness 'may tend to prove that the witness ... has committed an offence'. Ordinarily, witnesses do not tell lies that would incriminate them. Put simply, a certificate under s 57(5) does not in and of itself provide any incentive for a witness to lie.
81 It follows that, even if the plaintiffs were able to establish that a fair-minded lay observer might reasonably apprehend that the Coroner had decided that the plaintiffs were seeking a certificate under s 57 of the Act in order to gain a collateral advantage in a subsequent criminal trial, they have failed to establish that such an observer might reasonably apprehend that the Coroner might not assess the veracity of the plaintiffs' evidence impartially and on its merits.
82 The final matter upon which the plaintiffs relied to establish a prejudgment was the exchange between Mr Goetz and the Coroner that is set out at [32] above. The plaintiffs submitted that Mr Goetz's observations indicate that he was cynical about the plaintiffs' motives in seeking to give evidence under the protection of a certificate pursuant to s 57(5) of the Act, and that, by failing to disassociate herself from those observations, the Coroner would be taken by a fair-minded lay observer to condone them.
83 There is no merit in the plaintiffs' submission. Even if it is accepted that Mr Goetz's observations were adverse to the plaintiffs in the manner alleged by them, the Coroner cannot be taken to have condoned them, as she described them as 'hypothetical' and was dismissive of them. Further, even if the Coroner condoned Mr Goetz's alleged cynicism towards the plaintiffs' motives, the analysis set out at [79] and [80] above would be apposite.
84 It follows from the above that each of the matters upon which the plaintiffs have relied is insufficient to give rise to a reasonable apprehension of bias. I have also considered whether the combined effect of those matters was sufficient to give rise to a reasonable apprehension of bias. In my opinion, no such reasonable apprehension of bias arises from the cumulative effect of those matters.
85 For the above reasons, Grounds 1 and 2 are not made out.
Ground 3: Interrelationship between ss 49 and 57 of the Coroners Act
86 The third ground of review was that the Coroner erred in determining that a finding of reasonable grounds for the objections under s 57(1) of the Act necessarily led to the formation of a belief which required a referral to the DPP pursuant to s 49(1).
87 In the Ruling, the Coroner said the following about the interrelationship between a belief under s 49(1) of the Act and an opinion formed under s 57(2):
I ruled that there were reasonable grounds for each of Mr Lawrie's four clients' objections.
Accordingly, at that point I had necessarily formed the belief that each of Mr Lawrie's clients may have committed offences which also required me to implement section 49 of the [Act] and notify the DPP.
...
I had formed [the belief that triggers s 49(1) of the Act] as the result of the forensic and other evidence which was completed on 17 November 2011 and I had confirmed that belief when I determined [Mr Lawrie's] clients' applications to be excused from giving evidence because they may give evidence that could tend to prove that they had committed an offence.
A fair-minded, lay observer would reasonably be expected to already know from my response to Mr Lawrie's application on 17 November 2011 that I had formed the belief that Mr Lawrie's clients may have committed offences. Therefore, my announcement on 18 November 2011 would not have changed their understanding of that belief.[40]
88 I can dispose of Ground 3 briefly because, in the circumstances of this case, it cannot on its own support an order in the nature of prohibition.
89 I agree with the plaintiffs that the Coroner's comments set out at [87] above conflate the beliefs that must be formed under ss 49(1) and 57(2) of the Act. The belief that must be formed under s 49(1) is that 'an indictable offence may have been committed in connection with the death' whereas the belief that must be formed under s 57(2) is that there are reasonable grounds for the objection that the evidence to be given by a witness 'may tend to prove that the witness ... has committed an offence ... or ... is liable to a civil penalty'.
90 Although there is some overlap between ss 49(1) and 57(2) of the Act, there are significant differences, including the following:
(a) Section 49(1) is directed at a belief about the ultimate question of whether an indictable offence may have been committed. Section 57(2), on the other hand, is directed at a determination about the reasonableness of an objection and requires an assessment of the probative value of a witness's proposed evidence in relation to the ultimate question of commission of an offence.
(b) The phrase 'may tend to prove' is not the same as the phrase 'may have been committed'. The first phrase involves an element of prediction whereas the second phrase involves an element of retrospection.
(c) Section 49(1) of the Act is confined to indictable offences capable of being prosecuted in Victoria by the DPP whereas s 57(2) involves any offence or liability to a civil penalty in any jurisdiction.
91 It follows from the above that a determination by a coroner under s 57(2) of the Act does not necessarily lead to a simultaneous belief under s 49(1). Accordingly, to the extent that the Coroner suggested in the Ruling that at the time that she made a determination under s 57(2) she must also be taken to have formed a belief under s 49(1), she fell into error. Further, insofar as the Ruling suggests that a coroner is obliged to make a referral under s 49(1) immediately upon forming a belief under that section, the Ruling is erroneous. Section 69(2) has the effect that a referral can be deferred until a coroner delivers his or her findings. As discussed at [68] above, in some cases such a deferral would be appropriate.
92 Although I have upheld Ground 3, the plaintiffs are not entitled to any relief in relation to that ground. That is because the Coroner's errors cannot affect my conclusion under Grounds 1 and 2 that the Coroner's conduct did not give rise to a reasonable apprehension of bias. Those errors may have affected the validity of the Coroner's decision to exercise the referral power in s 49(1) of the Act, but no specific relief has been sought in this proceeding in relation to the validity of the exercise of that power. Assuming, without deciding, that the validity of the exercise of that power could have been impugned,[41] it is now too late to do so because the referral decision has been fully executed.
Grounds 4 and 5: Delay and misunderstanding of apprehended bias principles
93 The fourth ground of review was that the Coroner erred in determining that, because of unreasonable delay, the plaintiffs had waived their right to bring an application for disqualification based upon apprehended bias.
94 The fifth ground of review was that the Coroner erred in misconstruing para 29 of the judgment of Smith J in Honda Australia Motorcycle & Power Equipment Pty Ltd v Johnstone (as State Coroner),[42] to conclude that a judicial officer who was the subject of a bias application must have formed a final view in order for a reasonable apprehension of bias to be established.
95 In the Ruling, the Coroner said the following about Smith J's decision in Honda and about waiver:
The Supreme Court of Victoria has applied the Johnson v Johnson test in the context of the then State Coroner hearing an Inquest under the Coroners Act 1985. In so-doing, Smith J emphasised that:
...
Mr Lawrie was in a position to object to my referring the matter to the DPP on 18 November 2011 by making me aware that he believed that it indicated that I had pre-judged his clients' credit. He did not take that step.
Further, Mr Lawrie could have made his application that I disqualify myself because I had made the referral on or soon after 18 November 2011. He took no steps to do so until his instructors sought to list a Special Mention on 30 November 2012.
Further, the reason Mr Lawrie failed to make his application on or soon after 18 November 2011 was because it would be pointless and a waste of time if the DPP had decided to commence criminal proceedings.
However, if I had determined the matter as I do today, his clients would have had the opportunity to express their opinions elsewhere without further increasing the time before they give evidence in this Inquest.
Therefore, this delay is within the category of conduct contemplated by the High Court which held that delay in making the application establishes waiver of the right to make an application that a judicial officer disqualify herself from further hearing of the matter because of ostensible bias.
Accordingly, in my opinion, Mr Lawrie has waived his right to apply for me to disqualify myself from further hearing of the Inquest on the grounds of apprehended bias.[43]
96 Grounds 4 and 5 presuppose that the Coroner erred in refusing to recuse herself. As I have concluded that the plaintiffs have not established a reasonable apprehension of bias, Grounds 4 and 5 fall away. However, in case my conclusion is wrong, I will briefly discuss those grounds.
97 In relation to Ground 4, the plaintiffs submitted that the Coroner erred in deciding that they had waived their right to request her to recuse herself on the basis of delay. While the Attorney-General did not formally concede that the Coroner had erred, he did not argue the contrary.
98 The Coroner's announcement on the morning of 18 November 2011 that she had decided to exercise the referral power under s 49(1) of the Act was unexpected, brief and peremptory and was immediately followed by an adjournment of the Inquest pending the decision of the DPP whether to prosecute any person. In these circumstances, the Coroner's suggestion that the plaintiffs should have requested her to recuse herself on 18 November 2011 is fanciful. Moreover, the plaintiffs did not act unreasonably in not applying to this Court for relief prior to the DPP announcing his decision. Once the DPP decided not to prosecute any person and the Coroner decided to resume the Inquest, the plaintiffs requested the Coroner to recuse herself on the first day of the resumed hearing.
99 In the Ruling, the Coroner cited Vakauta v Kelly[44] and Smits v Roach[45] in support of her conclusion that the plaintiffs had waived their right to request her to recuse herself. Those cases involved civil proceedings in which the appellants knew the facts that possibly gave rise to a reasonable apprehension of bias. Notwithstanding that knowledge, the appellants allowed the trial to proceed, without objection, to judgment or to a point where it was obvious that they would be unsuccessful and only then alleged apprehended bias. Those cases are clearly distinguishable from the present case.
101 In relation to Ground 5, in Honda, Smith J stated that a reading of the transcript of the inquest in that case made it clear that 'the coroner had not formed a final view on the critical issues'.[46] In making that statement, Smith J did not purport to lay down a rule that a reasonable apprehension of bias cannot be found unless it is clear that the relevant judicial officer formed a final view. There is no doubt, however, that whether the views expressed by a judicial officer are final is a relevant consideration where prejudgment is alleged.[47] In any event, even if the Coroner misunderstood Smith J's comments in Honda, I am not persuaded that this led the Coroner to misapply the general principles relating to apprehended bias derived from cases such as Ebner[48] and Johnson[49] which the Coroner set out elsewhere in the Ruling.
103 For the above reasons, the plaintiffs have not established a basis for the granting of any of the forms of relief sought by them.[50] Accordingly, the application for review must be dismissed. I will hear from the parties on the form of the order to be made by this Court and on the question of costs.
[1] [1980] HCA 13; (1980) 144 CLR 13, 35-6. Cf Danne v Coroner [2012] VSC 454 (2 October 2012) [19] n 8 ('Danne').
[9] Section 55(2) of the Act empowers a coroner to summon a person to attend as a witness and to order a witness to answer questions.
[11] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598, 600; Danne [2012] VSC 454 (2 October 2012) [20] n 9.
[12] Firman v Lasry [2000] VSC 240 (9 June 2000) [12] ('Firman'); Honda Australia Motorcycle & Power Equipment Pty Ltd v Johnstone (As State Coroner) [2005] VSC 387 (29 September 2005) [16] ('Honda').
[13] [2000] HCA 63; (2000) 205 CLR 337 ('Ebner').
[14] Ebner [2000] HCA 63; (2000) 205 CLR 337, 344 [6] (citations omitted). See also Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492 [11] ('Johnson').
[15] Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [7].
[16] Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [7]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 564 [184] ('Jia Legeng'); Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, 437-8 [33] ('Michael Wilson').
[18] Jia Legeng (2001) 205 CLR 507, 564 [184].
[19] Ebner [2000] HCA 63; (2000) 205 CLR 337, 345 [8]. See also Michael Wilson [2011] HCA 48; (2011) 244 CLR 427, 445 [63].
[20] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 73; Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 [13].
[21] Firman [2000] VSC 240 (9 June 2000) [21].
[22] Johnson [2000] HCA 48; (2000) 201 CLR 488, 494 [14].
[23] Jia Legeng (2001) 205 CLR 507, 532 [72].
[24] Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 [13].
[25] Michael Wilson [2011] HCA 48; (2011) 244 CLR 427, 447 [68].
[26] Jia Legeng (2001) 205 CLR 507, 531-2 [71]-[72].
[27] Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 [13]; Jia Legeng (2001) 205 CLR 507, 533 [78], 538-9 [99]-[102], 562-3 [180]-[182], 564-5 [187].
[28] Priest v West [2012] VSCA 327 (20 December 2012) [170]-[171].
[29] [2000] VSC 240 (9 June 2000).
[30] Firman [2000] VSC 240 (9 June 2000) [27], [28]; Cf R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 5; (2005) 157 ACTR 1, 18-19 [70]-[71] ('Doogan').
[31] Firman [2000] VSC 240 (9 June 2000) [28].
[32] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 572.
[33] Smits v Roach [2006] HCA 36; (2006) 227 CLR 423, 439 [43]. See also Michael Wilson [2011] HCA 48; (2011) 244 CLR 427, 449 [76].
[34] Michael Wilson [2011] HCA 48; (2011) 244 CLR 427, 451 [84].
[36] Johnson [2000] HCA 48; (2000) 201 CLR 488, 495 [18].
[37] Cf Evidence Act 2008 ss 128, 132.
[38] Cf Doogan [2005] ACTSC 5; (2005) 157 ACTR 1, 38 [154].
[39] Michael Wilson [2011] HCA 48; (2011) 244 CLR 427, 447 [67], [70].
[40] Ruling, [49]-[50], [91]-[92] (citations omitted) (emphasis in original).
[42] [2005] VSC 387 (29 September 2005).
[43] Ruling, [35], [122]-[127] (citations omitted) (emphasis added).
[44] [1989] HCA 44; (1989) 167 CLR 568, 572.
[45] [2006] HCA 36; (2006) 227 CLR 423, 439 [43].
[46] [2005] VSC 387 (29 September 2005) [29].
[47] Michael Wilson [2011] HCA 48; (2011) 244 CLR 427, 447 [68].
[50] In addition to an order in the nature of prohibition, the plaintiffs sought an order in the nature of certiorari to set aside the Coroner's decision not to recuse herself.
Victoria Police SOG Operators 16, 34, 41 and 64
Coroners Court of Victoria [2013] VSC 246
(1980) 144 CLR 13
(1990) 170 CLR 596
(2000) 205 CLR 337
(2000) 201 CLR 488
(2001) 205 CLR 507
(2011) 244 CLR 427
(1994) 181 CLR 41
(1989) 167 CLR 568
(2006) 227 CLR 423