Rich v Attorney General of New South Wales & Ors

Court of Appeal (NSW)|2013-10-14|Before: Bathurst CJ, Beazley P, Leeming JA

Background 4The following factual background is taken from the reasons of the primary judge, who said it was uncontentious, and to which no objection was made when the summons for leave to appeal was heard. The deceased was 24 years old when he died, and had a history of mental illness. On 1 June 2009 he was left alone in his father's car, and drove away without his father's permission. His father reported to police that he was missing, that he suffered mental health problems and was frightened of police. Information to that effect was broadcast over police radio. The deceased walked into Armidale police station on 2 June 2009, returned the keys to the vehicle, and asked to be and was taken to hospital. He then left the hospital. 5The applicant and Senior Constable Dufty were charged with recovering the vehicle. They could not find it. They went to the hospital, where a nurse indicated concern about the deceased. That nurse told the Coroner that no certificate under s 16 of the Mental Health Act 2007 had been given, from which it followed that that Act neither conferred power nor imposed an obligation to return him to the hospital. The police officers found the deceased in the street and asked him to approach them to collect the keys. He ran away and was pursued. During the pursuit he picked up a large bread knife from a café kitchen. It is clear that the pursuit ended in Cinders Lane, Armidale, when he was shot by the applicant. Accounts of what happened in Cinders Lane diverged, but the primary judge recorded at [9] that: "[The applicant] said that he had repeatedly called on Elijah to drop the knife, that Elijah had not done so but had "roared" and run at him and that [the applicant] ... had fired because he thought that he was going to be stabbed and out of his concern for others." 6The applicant participated in "directed interviews" on 3 June and 11 November 2009, and a "walk-through" interview on 4 June 2009, as required under clause 8 of the Police Regulation 2008 (see Baff v NSW Commissioner of Police [2013] NSWSC 1205). The death having occurred "as a result of, or in the course of, police operations", there was jurisdiction to hold an inquest under s 23(c) of the Act, and an obligation to do so pursuant to s 27(1)(b). That inquest commenced by the State Coroner on 11 October 2010, but was suspended on 29 October 2010 when her Honour formed the view that there was a reasonable prospect that a jury might convict the applicant of an indictable offence: s 78(1)(b) and (3)(b). The depositions and a statement signed by her Honour were forwarded to the Director of Public Prosecutions as required by s 78(4). 7However, on 28 August 2012, the Director advised that he would not prosecute the applicant for murder or manslaughter or any other offence, because in his view there were no reasonable prospects of the Crown proving beyond reasonable doubt that the applicant's response was not a reasonable one. That enlivened the power to resume the inquest: s 79(1) and (5), which occurred on 25 March 2013. Counsel assisting then identified four matters for determination: "(a) Why the plaintiff and Senior Constable Dufty pursued Mr Holcombe; (b) To what extent Mr Holcombe's picking up the knife changed the course of events; (c) To what extent the discharge of the plaintiff's firearm was a last resort and 'otherwise within police training and directions'; and (d) What, if anything, might have been done to achieve another and better result, particularly in view of the state of Mr Holcombe's mental health." 8Senior Constable Dufty and an officer with expertise in the use of force by police gave evidence. The applicant was then called and sworn. After identifying himself, he said that he objected to giving evidence on the grounds that the evidence might tend to prove that he had committed an offence against or arising under an Australian law or was liable to a civil penalty. He also said that even if given a certificate under s 61 of the Act he would not give evidence willingly. Submissions were then made by senior counsel appearing for each of the applicant, the Commissioner, and counsel assisting as to whether the Coroner should require him to give evidence. 9It was and is common ground that the applicant had a reasonable basis for holding the view that his evidence might tend to prove that he had committed an offence or that he was liable to a civil penalty. It was accepted that it was possible that the Commissioner might, in light of the evidence, exercise disciplinary powers under Part 9 of the Police Act 1990. Section 173 of that Act distinguishes between "non-reviewable action" (which includes training, counselling, a reprimand, restricted duties and recording an adverse finding) and more serious "reviewable action" (which includes demotion and dismissal), either of which may be imposed by the Commissioner, but only the latter of which may be reviewed by the Industrial Relations Commission: see Commissioner of Police v Eaton [2013] HCA 2; 87 ALJR 267 at [56]-[59] and [66]-[71]. This Court decided Attorney General of NSW v Borland [2007] NSWCA 201 on the basis that the risk of disciplinary action attracted the civil penalty privilege under the predecessor to s 61 (Coroners Act 1980, s 33AA(1)), which result is consistent with what was said in Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at [37], and no submission to the contrary was made at any stage in these proceedings. 10The applicant also relied on two further considerations said to be relevant to the "interests of justice". The first was the possibility that the Director of Public Prosecutions might decide to prosecute him. The second turned on the fact that the father of the deceased had commenced civil proceedings against the Crown. Those proceedings were a "police tort claim" within the meaning of s 9B of the Law Reform (Vicarious Liability) Act 1983. The effect of s 9B is that a plaintiff can only sue the Crown, until such time as the Crown denies that it was vicariously liable, in which case the officer could be joined. The Crown had not denied vicarious liability in the proceeding commenced by Mr Holcombe, but the applicant said there was a possibility that it might do so, depending on the evidence he gave, and that that possibility engaged s 61. 11The Coroner reserved and gave a decision on 5 April 2013 concluding that she would exercise her power under s 61 to require Senior Constable Rich to give evidence. Promptly thereafter he brought proceedings in this Court seeking judicial review of the Coroner's decision. His summons was heard on 19 June 2013 and dismissed on 3 July 2013: [2013] NSWSC 877. He sought leave to appeal, and that summons was heard concurrently with the appeal on 14 October 2013. Leave to appeal is required because there is no matter at issue, or claim, demand or question to or respecting any property or civil right, amounting to $100,000 or more: Supreme Court Act 1970, s 101(2)(r). The issues raised are self-evidently important, and not merely to the parties. For those reasons, there should be a grant of leave.

Sections 58 and 61 of the Act 12The rules of evidence do not necessarily apply to the holding of an inquest: s 58(1) and s 46(2)(a). However, except as otherwise provided by the Act, a witness who is a natural person cannot be compelled to answer questions which might tend (a) to incriminate the person for an offence against or arising under an Australian law or a law of a foreign country, or (b) to make the witness liable to a civil penalty: s 58(2). The Act thereby makes applicable two categories of long established privilege, one arising at common law, the other in equity, neither of which traditionally applied outside courts, and avoids difficult questions whether those privileges apply to the "hybrid process containing both adversarial and inquisitorial elements" which is an inquest: Musumeci v Attorney General of NSW [2003] NSWCA 77; 57 NSWLR 193 at [33]. This is a case where, by using the language of familiar doctrines of common law and equity, the Legislature is taken to have "intended to import well-established principles of the common law": see Pollock v The Queen [2010] HCA 35; 242 CLR 233 at [47]. The parties and the Coroner at all times proceeded on that basis. 13Subsection 61(1) of the Act is as follows: "(1) This section applies if a witness in coronial proceedings objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty." 14The section only applies if a witness objects to giving particular evidence or evidence on a particular matter, which wording reflects that of s 128 of the Evidence Act 1995 (NSW) as amended by the Evidence Amendment Act 2007. It is not so broad as, for example, the power given by s 38 of the Independent Commission Against Corruption Act 1988 to "declare that all or any classes of answers given by a witness...will be regarded as having been given...on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer." The State Coroner and all the parties before her proceeded on the basis that s 61 authorised a "global" objection to the giving of all evidence. I return to this below. 15Subsection (2) imposes an initial obligation upon the Coroner before whom an objection is made first to determine whether there are reasonable grounds for it. This is done in advance of the evidence being given, and the question is whether the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty. That is to say, the threshold question is whether there is a well-founded risk of the type described by the subsection. In the present case, it was and is common ground that the applicant had reasonable grounds for his objection, based at least on the possibility of disciplinary action. It was and is also common ground that the immunity conferred by s 61(7) would not prevent the Commissioner from relying on the applicant's evidence. Section 61(7) applies to courts and other bodies authorised to receive evidence, not to information which may result in exercises of power under s 173 of the Police Act. In that event, the Coroner is required to inform the witness of the matters in subsection (3), including the consequences that flow depending upon whether the witness is willing to give the evidence, or is required to do so. 16Subsection 61(4) confers power on the Coroner to require a witness to give evidence that may tend to prove that he or she has committed an offence or is liable to a civil penalty, even if he or she has objected and is unwilling to give evidence even if given a certificate. It provides: "(4) The coroner may require the witness to give the evidence if the coroner is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence." 17There are two preconditions to the exercise of the power conferred by s 61(4). The first, in s 61(4)(a), was always made out (its premise is that no certificate could protect a witness against criminal proceedings or proceedings for a civil penalty in a foreign country, so that if that is the basis of the objection, there is no power to require the witness to give evidence). The second, in s 61(4)(b), which is of critical importance in these proceedings, is open-ended. It is merely that the Coroner is satisfied that the interests of justice require that the witness give the evidence. 18Two difficulties confront a challenge to the exercise of power under s 61(4). The first is that the Act does not define "interests of justice". It has been said that in this context those words should be construed broadly, and can (in an appropriate case) authorise questions going to credit: Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187 at [38] (Sheller JA, Meagher and Beazley JJA agreeing). In a different context, but in respect of the same Act, Kirby P said that the words were of the "widest possible reference" such that "there could scarcely be a wider judicial remit": Herron v Attorney-General for NSW (1987) 8 NSWLR 601 at 613. 19Subsection 61(4)(b) is thus an instance of that class of broadly worded and undefined discretionary powers described by Dixon CJ in Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 (to which Hayne, Kiefel and Bell JJ referred in Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618 at [67]): "We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case." 20The second is that the precondition of the exercise of power is not that the interests of justice require the evidence to be given under compulsion. The precondition is merely that the Coroner be satisfied that the interests of justice so require. That does not mean that the decision is unreviewable (although it once was, as Windeyer J observed in Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57). The state of satisfaction is a "jurisdictional fact": see D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [69]-[71] (Beazley P, with whose reasons Bathurst CJ agreed), where the ways by which a challenge may be made are reviewed. But it is plain from her reasons that the Coroner was satisfied, and where as here legislation requires the donee of power to be satisfied as to a matter of "opinion or policy or taste", there will be "a very wide discretion which cannot be effectively reviewed by the courts", as Gibbs J said in Buck v Bavone (1976) 135 CLR 110 at 119. 21To return to the structure of the statute, if the Coroner requires the witness to give the evidence, the Coroner must cause the witness to be given a certificate in respect of the evidence: s 61(5). Subsection (7) states the effect of a certificate: "(7) In any proceeding in a NSW court within the meaning of the Evidence Act 1995 or before any person or body authorised by a law of the State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence." 22Thus, although a witness who refuses to answer any question relevant to the subject matter of the proceedings without lawful excuse is guilty of an offence (s 62), s 61(7) confers a broadly worded use immunity in respect of evidence in respect of which a s 61 certificate has been given. The immunity extends not merely to the evidence given by the person, but also evidence of any information, document or thing "obtained as a direct or indirect consequence of the person having given evidence". The immunity extends to any "NSW court" and "any person or body authorised by a law of the State" to hear, receive and examine evidence. It is not necessary to consider its application to other Australian courts.

The State Coroner's decision 23As noted above, it was common ground that Senior Constable Rich had reasonable grounds for his objection. The matters advanced as to the prejudice which the applicant might suffer were: (1)the possibility that the Commissioner of Police might take "non-reviewable action" or "reviewable action" within the meaning of the Police Act 1990; (2)the possibility that the Industrial Relations Commission would not be bound by a s 61 certificate, in the event that the Commissioner took reviewable action and Senior Constable Rich sought review in the Commission; (3)the potential civil liability Senior Constable Rich faced in the event that the Commissioner of Police decided to deny that he was vicariously liable for the actions of the Constable; and (4)the possibility that the Director of Public Prosecutions might use the evidence given to make a decision to prosecute the Constable. All of those considerations were advanced before the Coroner, whose reasons expressly considered the first three. Her Honour did not address the fourth. 24On the other hand, counsel assisting pointed to the obligation to record the manner and cause of the death imposed by s 81(1)(c), the legitimate interest of the Holcombe family to participate in the inquest and hear and test the applicant's version of events, and the public interest in a police officer who is permitted to carry and use a firearm explaining his actions. The reasons of the State Coroner referred to those matters, and further issues which she regarded as being in the interests of justice (at [8]): "Finally, it must be taken into account that Elijah had, and was known by at least some police with whom he was involved on the day of his death, to have, a mental illness. This shooting of a mentally ill young man is not, sadly, an isolated incident. Questions arise inevitably of whether police are being sufficiently trained in and made aware of the discrete needs of mentally ill persons, and methods of dealing with them. Was Senior Constable Rich aware that Elijah had not been scheduled under the Mental Health Act and had left the hospital voluntarily? Did Senior Constable Rich believe that he had a right under s 22 of that Act to detain Elijah and return him to the hospital? If not, why did he chase after Elijah? These are significant issues which require further exploration, and may require my consideration under the power to make Recommendations under s 82 of the Coroners Act." 25It was not submitted that any of those matters fell outside the scope of the Coroner's exercise of power under s 61(4). 26Her Honour's conclusions were at [13]-[18] as follows: "13. I am in no doubt that the Commissioner could make an administrative decision subjecting Senior Constable Rich to a civil penalty. I note that to date Senior Constable Rich continues to work in the same Command, at the same rank and without penalty, and consider such action by the Commissioner to be extremely unlikely. Any such reviewable action taken would be relatively modest and in any case, is highly unlikely to follow from any evidence Senior Constable Rich might give. 14. Similarly, I am advised that civil proceedings have been commenced against the Commissioner and that vicarious liability has not so far been refused. 15. Furthermore, the major penalty of dismissal, also apparently a more than remote possibility, would in fact only be reviewable in the Industrial Commission, which would of course be bound by a s 61 certificate. 16. In my view, any potential civil liability for damages, whether by Rich, the Commissioner, or the State, if not entirely irrelevant, is of little significance in this context. Any evidence by Senior Constable Rich under a certificate in these proceedings cannot be used against him in any proceedings for civil remedies. Orders for compensation have been held not to be penalties (Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [28]). Liability could arise without any further evidence from Senior Constable Rich. No one receives full immunity for their actions by reason of a certificate, and s 61 and its certificate are not designed to protect individuals, even police officers, from any form of adverse consequence of giving evidence other than self incrimination for a criminal act and a degree of civil penalty. 17. The Directed Interviews and walkthrough video are not sufficient reason to exempt Senior Constable Rich from giving evidence. His versions are untested, and necessarily defensive; they were not given voluntarily. There are issues left unanswered, which distinguishes this inquest from that scrutinised in Borland. In the latter, the police pursued a motorcycle driven at illegal speeds which crashed, killing the rider. The state of mind of the officer was not the significant issue that it is in this case. There was no suggestion of mental health factors, nor was the death directly due to an action by the officer, or the use of a police firearm. The inquest into the death of Elijah Holcombe cannot be complete or properly open to the necessary standard of scrutiny without hearing from Senior Constable Rich. I am very conscious of the possible potential exposure of Senior Constable Rich as a most material consideration. However, it is my view that the extreme unlikelihood of his in fact suffering any such detriment, without dismissing its importance in considering my discretion, is outweighed by the need for Senior Constable Rich to be required to give evidence in the interests of justice. 18. I find that the interests of justice require that Senior Constable Rich give evidence in these proceedings and I exercise my discretion under s 61 to require him to do so. I shall cause him to be given a certificate under that section."

The proceedings for judicial review 27Putting to one side grounds which were not pressed on appeal, the grounds advanced before the primary judge (as ultimately formulated) were as follows: "1. The Coroner erred in finding that the interests of justice require that Senior Constable Rich give evidence in the coronial proceedings of the Inquest into the death of Elijah Jay Holcombe. 2. The Coroner erred by failing to consider, or properly consider, the question of risk to the Plaintiff by potential evidence that may be given. 3. The Coroner erred by failing to consider, or properly consider that evidence might be given by the Plaintiff which was consistent with an earlier referral of the papers to the Director of Public Prosecutions. 4. The Coroner erred by finding that a certificate provided under section 61 of the Coroners Act 2009 would give protection to the Plaintiff with respect to the use by the Commissioner of Police of evidence given in the proceedings by the Plaintiff when considering employment discipline and employment termination issues. 5. The Coroner erred in failing to give weight to, or sufficient weight to, the potential civil liability the Plaintiff may face if he is called upon to give evidence. ... 8. The Coroner erred by failing to consider, or properly consider, the potential use by the Director of Public Prosecutions of any further evidence given by the Plaintiff." 28Three difficulties confronting the applicant's formulation are immediately obvious. First, no appeal lies from a coroner's decision; the applicant instead invoked this Court's supervisory jurisdiction. Yet Ground 1 on its face proceeds as if there were an appeal by way of rehearing as to the exercise of the discretion under s 61. It was necessary for the applicant to identify judicially reviewable error in the Coroner's decision. 29The second is that there will ordinarily only be judicially reviewable error in failing to consider something which is a relevant consideration in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, being a consideration which the decision-maker "is bound to take into account in making that decision" (emphasis in original). Ambiguity in this context can be avoided by referring to a "mandatory relevant consideration", as Gageler J did with the agreement of all other members of the High Court in Mills v Commissioner of Taxation [2012] HCA 51; 87 ALJR 53 at [61]. But the Act in its terms mandates consideration of no particular consideration, save for the very evidence to which objection has been made, being "the evidence" which the Coroner must be satisfied that the interests of justice require to be given. Otherwise, it leaves it to the Coroner to assess what falls within the broad, undefined term "the interests of justice". It remains theoretically possible to imply, from its subject matter, scope and purpose, a limitation upon the matters to which the Coroner may have regard, but that is no easy task in the case of this legislation. 30The third is that the weight to be accorded to any particular matter to which the Coroner had regard in reaching the state of satisfaction that the interests of justice required the evidence to be given was, so far as this Court's supervisory jurisdiction is concerned, entirely a matter for the Coroner, who was well placed to evaluate the competing considerations. 31On their face, each of Grounds 1, 2, 3, 5 and 8 clash with those principles. Ground 1 identifies no judicially reviewable error, the remaining grounds ambitiously presuppose that the Act impliedly bound the Coroner to have regard to the matters alleged, and the alternative formulations within those grounds of failing to give "sufficient weight" or to "properly consider" tend to go beyond the limits of judicial review. Judicial review is about identifying and enforcing the limits of executive power: it is, as Gleeson CJ and Brennan J have emphasised, "the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law": Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [31]. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power, not the court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 32Perhaps for that reason, the arguments advanced by the applicant were not confined to the grounds as formulated. Those arguments were addressed below, save for one which was advanced for the first time on appeal. The applicant sought leave to contend that there was no evidence supporting the Coroner's critical findings in paragraphs 13 and 17 of her reasons. That was not a ground advanced in the court below, and there is no good reason to grant leave to appeal in respect of a ground not raised at first instance. Moreover, as the Crown Advocate pointed out, in order to determine that ground it would be necessary to review and perhaps supplement the material which was before the Coroner (much of which had understandably not been reproduced in the material in the White Folder). For those reasons the Court refused leave to add that ground.

No failure to have regard to potential evidence 33Although it was said that her Honour committed error by attending only to the applicant's evidence in its current form (that is, the directed and "walk-through" interviews), and not the evidence that might be given in the future, it is plain that her Honour sought to evaluate the potential evidence that might be given. For paragraphs 13, 15, 16 and 17 of the dispositive reasoning reproduced above are based upon the possibility of adverse action against the applicant, and there was no basis for such action on the evidence as it presently stood. The fact of the matter is that the Coroner did, expressly, consider the possibility of disciplinary action by the Commissioner of Police, and the applicant's potential civil liability if the Commissioner denied vicarious liability. The difficulty faced by the applicant is that the question of weight to be given to the competing considerations arising on the application before her was a matter for her Honour. Likewise, in the absence of establishing a ground of judicial review, her Honour's assessment of the likelihood of the risk of the various adverse consequences to which the applicant pointed was, once again, a matter for her.

The effect of a certificate and the possibility of reviewable action 34The applicant claimed that the Coroner had erred at [15] in considering that a s 61 certificate would bind the Industrial Relations Commission, in light of the structure of s 181F of the Police Act. Section 181F is one of a suite of provisions in Division 1C of Part 9 of the Police Act whose purpose is to enable the Industrial Relations Commission to review the Commissioner's decision to remove an officer from the NSW Police Force. Broadly speaking, those provisions make the "unfair dismissal" provisions within Part 6 of Chapter 2 of the Industrial Relations Act 1996 applicable, subject to specified modifications. Section 181F requires the Commission in such a review to proceed in a particular way, the first step of which is that "it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force". The applicant's argument was that if the applicant gave evidence that caused the Commissioner to remove him, then that would be disclosed in the Commissioner's reasons, and the immunity conferred by s 61(7) would be in conflict with, and overridden by, the obligation to consider the reasons imposed by s 181F. 35However, s 181I(2) of the Police Act, which is also in Division 1C of Part 9, provides that nothing in this Division limits or otherwise affects the admissibility in evidence in proceedings before the Commission under this Division of any transcript of the proceedings of any other court or tribunal. With commendable candour, senior counsel for the applicant conceded in submissions in reply that s 181I(2), a provision squarely directed to the resolution of any conflict as to the admissibility in evidence, was an answer to the submission. His concession was properly made. The transcript of evidence given under compulsion before the Coroner is a transcript of proceedings of "any other court or tribunal". The immunity conferred by s 61(7) in respect of the transcript is not impliedly overridden by anything in Division 1C of Part 9 of the Police Act. It follows that there is no sound basis for concluding that the immunity from any derivative use of the evidence (for example, a portion of the transcript recorded in the Commissioner's reasons, or the substance of it) could be overridden impliedly by anything in Division 1C of Part 9. 36Even if that were not so, the immunity conferred by s 61(7) is confined to the "particular evidence" or "evidence on a particular matter" to which the objection is made pursuant to s 61(1). Section 61(7) is a specific provision located in a 2009 Act which post-dates the provisions in the Police Act. Putting s 181I(2) entirely to one side, ordinary principles of statutory construction would point to the conclusion that the later, specific Act designed to protect evidence given overriding long-established privileges would prevail over an implication founded on s 181F. 37In either event, irrespective of the content of the Commissioner's reasons, the Commissioner will not be able to establish, by evidence in the proceedings in the Industrial Relations Commission, any matters deriving directly or indirectly from the evidence given by the applicant within the scope of the s 61(7) certificate. Naturally, the review conducted by the Commission will start with the Police Commissioner's reasons, but the Commissioner will not be able to justify those reasons to the extent that the certificate applies. It follows that the Coroner correctly proceeded upon the assumption that s 61(7) protection would be available in the event that the Commissioner of Police dismissed the Senior Constable based on the evidence she required him to give, and there was no error in the reasoning of the judge below, even though neither the Coroner nor the judge at first instance was taken to s 181I(2). 38It was also put that the operation of s 61 in the Commission was not a complete answer from the applicant's perspective: he might, after all, not seek review, and in any event, he would suffer prejudice by knowing that irrespective of the outcome of the review he had lost the confidence of the Commissioner. As his counsel put it, "So he may say, 'Well, I don't want the expense and stress of review. What is the point of going back? They don't want me anyway.'" There is force in those considerations as abstract possibilities. However, they reflected a tendency on the part of the applicant to claim that he should not be prejudiced in any way by being required to testify. That tendency is understandable, but the premise of s 61 is that a person is forced to give evidence, contrary to a well-founded claim of privilege, and with the benefit of the inevitably imperfect protection of the certificate. 39Mr Thangaraj SC correctly pointed out in argument that even in a court where s 61 prevents any evidence being adduced, if the witness' lawyers know the evidence that has been given under compulsion, that will restrict the forensic choices open to them, which can amount to real prejudice. That same prejudice was discussed by Hayne and Bell JJ in X7 v Australian Crime Commission [2013] HCA 29; 87 ALJR 858 at [124], with whom on this point French CJ expressed his agreement in Lee v New South Wales Crime Commission [2013] HCA 39; 302 ALR 363 at [54]; see also at [79]-[82] (Hayne J) and [211] (Kiefel J); cf [323]-[344] (Gageler and Keane JJ). But s 61 requires that prejudice to be weighed in the balance of the interests of justice favouring obtaining the evidence. The premise of the section is that a witness is exposed to a risk, in which case, s 61(4) obliges the Coroner to undertake an evaluative assessment of the interests of justice. That is precisely what the State Coroner did.

The possibility of non-reviewable action 40There is also the possibility of non-reviewable action being imposed upon the applicant based on evidence which he might give. On a fair reading of the Coroner's reasons, her Honour had regard to that possibility, once it is appreciated that there is a typographical error in her Honour's reasons. In my opinion it is tolerably clear that "reviewable" in the final sentence of [13] should be read as "non-reviewable", so that it reads (with the new word emphasised): "Any such non-reviewable action taken would be relatively modest and in any case, is highly unlikely to follow from any evidence Senior Constable Rich might give." 41That reading (which resembles what occurred in S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [34]) avoids the inconsistency between what is there said about the "relatively modest" nature of that action, in contrast with the "major penalty of dismissal" mentioned two sentences later. Further, that reading accords with the submission made by counsel assisting, earlier recorded in her Honour's reasons, that "Whilst the Commissioner of Police, under the Police Act 1990, can take actions that are not reviewable, they are relatively minor in comparison and can include such things as reprimand, warning, restricted duties and the recording of adverse findings." The Crown Advocate embraced that reading, and the applicant accepted that it made sense. 42In effect, the Coroner was proceeding on the basis that it was true that the applicant might suffer relatively minor disciplinary consequences from his evidence, which would not be protected by s 61(7), but that in light of (a) what had happened over the last four years, and (b) the probable nature of his evidence, in light of the directed interviews, that was unlikely, and did not outweigh the countervailing interests of justice. No judicially reviewable error is disclosed by that reasoning process.

A decision to prosecute? 43Finally, it was said that the Coroner failed to consider the possibility that the Director of Public Prosecutions might reconsider whether to prosecute the applicant. That is so, but it does not give rise to judicially reviewable error. The applicant is the last witness in the inquest. Any evidence which he gives will not be able to be used at a criminal trial. I accept the submission of the Crown Advocate that the Director of Public Prosecutions could not rationally, or properly, reach a different view about commencing a prosecution based on evidence which could not be used by the prosecution. This was a matter which "could not have materially affected the decision": Minister for Aboriginal Affairs v Peko-Wallsend at 39; D'Amore at [141]-[142] (Beazley P, Bathurst CJ agreeing).

Conclusions 44For those reasons, no judicially reviewable error is disclosed. That conclusion does not mean that the applicant's ability to object is necessarily at an end. First, the Coroner will of course retain general power to control the questions the applicant is asked. Secondly, given the way in which the objection has been advanced to date, it may be that a more narrow objection may be advanced in the future. 45The evaluation of the "interests of justice" to date has been conducted at a high level, because of the "global" nature of the applicant's objection. This Court was told that that was a course typically followed by the Coroner, and it was what occurred in Attorney General of NSW v Borland [2007] NSWCA 201. That sits uneasily with the confined terms "particular evidence" and "particular matter" in s 61(4), especially when regard is had to the legislative history. 46The counterpart provision (s 33AA of the Coroners Act 1980), originally referred merely to an objection to giving "particular evidence", thereby reflecting the traditional approach at general law: Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 423. In 2005, the Australian and New South Wales Law Reform Commissions recommended a more flexible approach: see Uniform Evidence Law ALRC 102 and NSWLRC 112, at paragraph 15.95 and recommendation 15.7. Amendments expanding the section to "evidence on a particular matter" were made in the Evidence Amendment Act 2007 (see Schedule 2.2 item 3) and those amendments were re-enacted in the Act in 2009. That history, which may be contrasted with s 38 of the Independent Commission Against Corruption Act 1988 reproduced above, tends not to support the approach adopted by the parties. 47However, no party having challenged the Coroner's power to take that course, there is no occasion to express a concluded view as to whether s 61 authorises it, which would require examining what was said in Correll v Attorney-General (NSW) [2007] NSWSC 1385; 180 A Crim R 212 at [55]. However, it is easy to see how it may give rise to difficulties in assessing the overall "interests of justice". For example, the State Coroner has indicated an interest in whether police are sufficiently trained in and made aware of the discrete needs of mentally ill persons. 48It is easy to see a more powerful case for the exercise of discretion under s 61(4) if objection were taken to, say, questions directed to the nature and extent of training the applicant received in dealing with the mentally ill (the prejudice to the applicant will be nil or minimal). It may be a quite different thing to determine whether, say, counsel for the deceased's father were to be permitted to cross-examine the applicant, including on his credit, in relation to the whether the deceased was charging at him with a drawn knife. 49It suffices to say that the consequence of adopting an "in globo" approach means, as the Crown Advocate correctly pointed out, that the applicant could make a further application, and the Coroner could revisit the question, in respect of some particular topic of evidence. 50For those reasons, I propose the following orders:

Leave to appeal granted.
The draft notice of appeal stand as the notice of appeal in the proceedings.
The appellant pay the applicable filing fee in respect of the notice of appeal within seven days, but all further requirements of the rules with respect to its filing and service be dispensed with.
Appeal dismissed with costs.

Amendments 10 December 2013 - Hyperlinks removed Amended paragraphs: Coversheet, [9] and [26] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2013

les Crime Commission [2013] HCA 39; 302 ALR 363 Mills v Commissioner of Taxation [2012] HCA 51; 87 ALJR 53 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Musumeci v Attorney General of NSW [2003] NSWCA 77; 57 NSWLR 193 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 Pollock v The Queen [2010] HCA 35; 242 CLR 233 Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 X7 v Australian Crime Commission [2013] HCA 29; 87 ALJR 858 Category: Principal judgment Parties: Senior Constable Andrew Rich (Appellant) Attorney General of New South Wales (First Respondent) New South Wales State Coroner (Second Respondent) Jeremy Holcombe (Third Respondent) Representation: Counsel: M Thangaraj SC; B Haverfield (Appellant) N Adams SC; B Baker (First Respondent) J Sheller; T Phillips (Third Respondent) Solicitors: Walter Madden Jenkins Solicitors (Appellant) Crown Solicitor's Office (First Respondent) Sweeney Tiggemann Solicitors (Third Respondent) File Number(s): 2013/225174 Decision under appeal Citation: [2013] NSWSC 877 Date of Decision: 2013-07-03 00:00:00 Before: Barr AJ File Number(s): 2013/109209

HEADNOTE On 2 June 2009, the applicant, a police officer, shot and killed a man with a history of mental illness. The applicant was not charged with any offence in relation to the death. He is the only remaining witness in coronial proceedings in which he objected to giving evidence, relying on the privilege against self-incrimination in s 58(2) of the Coroners Act 2009. The applicant advised he would not give evidence willingly, even if offered a certificate by the State Coroner, which prevents the relevant evidence from being used against the person giving the evidence in any proceeding in a NSW court, or before any person or body authorised by a law of the State. He was directed by the Coroner to give evidence in the proceedings, pursuant to s 61(4)(b) of the Act. The applicant commenced proceedings seeking judicial review of the Coroner's decision, asserting error on the face of the record and challenging the finding that the interests of justice required that the applicant give evidence. The proceedings were dismissed. The applicant sought leave to appeal the decision, and there was a concurrent hearing. The Court held, granting leave to appeal but dismissing the appeal:

No appeal lies from a Coroner's decision. It was therefore necessary for the applicant to identify judicially reviewable error in the Coroner's decision by showing that the Coroner failed to consider a relevant consideration. The Act does not mandate consideration of any particular matters, other than "the interests of justice". [28]-[29] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mills v Commissioner of Taxation [2012] HCA 51; 87 ALJR 53, referred to. (a) The exercise of power conferred by s 61(4)(b) is open-ended. There is no definition of "interests of justice" in the Coroners Act 2009. The section is a broadly worded and undefined discretionary power. [17]-[19] Klein v Domus Pty Ltd (1963) 109 CLR 467; Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618, applied. Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187; Herron v Attorney-General for NSW (1987) 8 NSWLR 601, referred to.
The Coroner properly considered the question of risk from potential evidence given by the applicant. The Coroner did so expressly and the question of weight to be given to the competing considerations was a matter for her Honour. [33]
Section 181I(2) of the Police Act 1990 was an answer to the submission that the immunity conferred by s 61(7) of the Coroners Act 2009 could be overridden by anything in Division 1C of Part 9 of the Police Act 1990. The Industrial Relations Commission would be prevented from using evidence given in the course of the coronial proceedings if the applicant commenced proceedings for review of summary removal by the Commissioner of Police. [35] (a) The Coroner was correct in assuming that s 61(7) would protect the applicant in the event that the Commissioner of Police dismissed him based on the evidence he was required to give pursuant to s 61(4)(b). [37] (b) The premise of s 61 is to force a person to give evidence with the benefit of a certificate that provides imperfect protection. This may restrict the forensic choices open to them, and amount to real prejudice. As occurred in this case, s 61 requires that prejudice to be considered against the interests of justice in obtaining the evidence. [38] X7 v Australian Crime Commission [2013] HCA 29; 87 ALJR 858; Lee v New South Wales Crime Commission [2013] HCA 39; 302 ALR 363, referred to.

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