Rich v Attorney General of New South Wales & Ors

The Nature of the Proceedings 24Mr Thangaraj of Senior Counsel who appeared with Mr Haverfield for the plaintiff, made clear at the outset that notwithstanding Order 1 in the Second Amended Summons the plaintiff did not seek prohibition. Mr Thangaraj did not assert any want of jurisdiction on the part of the Coroner. It was common ground that her Honour had the discretion under s 61(4) of the Act to require a witness to give evidence provided she were satisfied of the matters set forth in that subsection. What was sought was judicial review. That was why Mr Thangaraj amended the Summons to ask for an order quashing her Honour's direction, consistently with the judgment of the Court of Appeal in Attorney General of New South Wales v Borland [2007] NSWCA 201 per Handley AJA at [21]. Mr Thangaraj accepted that an order in terms of Order 3A sought in the Second Amended Summons would suffice. It appeared that the prayers for declarations were redundant. 25There is no statutory right of appeal from an interlocutory or final order of the Coroner and the plaintiff invokes the Court's supervisory jurisdiction, asserting error on the face of the record and attacking the manner in which her Honour determined that the interests of justice required that the plaintiff give evidence. Since that was a discretionary decision, the principles in House v The King (1936) 55 CLR 499 apply. To establish an entitlement to an order quashing her Honour's order the plaintiff must show that in arriving at her determination her Honour acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts or failed to take into account some material consideration or that on the facts the result is unreasonable or plainly unjust. 26In this context the term "relevant considerations", means mandatory considerations, so that failure to take them into account will amount to an error of law. Irrelevant considerations are those which are extraneous to the proper exercise of power, so that to take them into account will reveal legal error. But there may be, lying between these poles, legitimate factors consideration of which is neither mandated nor precluded. See the judgment of Basten JA in Ballantyne v Workcover Authority of New South Wales (2007) 5 DDCR 97; [2007] NSWCA 239 at [113]. 27For the most part the plaintiff relies on asserted failure to take into account mandated matters. Before dealing with the substance of the submissions I should say something further about the difference between the functions of her Honour and of this Court. It was for her Honour to identify mandated matters and to eschew consideration of extraneous matters. It was for her Honour in her discretion to identify any matter which, though not mandated, was capable of bearing upon the question where the interests of justice lay. It was for her Honour to weigh all such matters and to determine where the balance lay. 28When this Court is asked to identify error by a Tribunal's failing to take any matter into account, the Court looks at the face of the record and determines whether the tribunal did fail to take the matter into account. But it is not for this Court to weigh relevant matters. In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 4, Mason J said at pp 39-42- (1) Failure To Take Into Account a Relevant Consideration. The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s. 5(2)(b) of the A.D.(J.R.) Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v. Mackellar; Creednz Inc. v. Governor-General; Ashby v. Minister of Immigration... (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Ply. Ltd, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury and Water Conservation and Irrigation Commission (N.S W) v. Browning. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal; Hanks v. Minister of Housing and Local Government; Reg. v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd. (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v. MacKellar; Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd; Elliott v. Southwark London Borough Council; Pickwell v. Camden London Borough Council... (Footnotes omitted) 29In Minister for Immigration and Multicultural Affairs v Yusuf [2005] HCA 30; (2001) 206 CLR 323 McHugh, Gummow, and Hayne JJ, dealing with the judicial review of administrative action, said at [74]- [74] This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. 30Since the Act does not specify any matter to be considered in answering the question posed by s 61(4) (b) her Honour had to identify relevant matters by implication from the subject-matter, scope and purpose of the Act as explained by Mason J in the passage extracted above.

Ground 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.

Ground 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. 31These grounds were argued together and may be considered together. The potential evidence referred to in the second ground and the evidence that might be given referred to in the third ground are the same. 32The case may be put in this way. The risk referred to will arise if the plaintiff gives evidence. He will be questioned by Counsel assisting the Coroner on the topics foreshadowed: see para 18 above. He will be cross-examined by counsel for the family of Elijah. The family have made clear that they hold him responsible for the homicide. They have commenced a civil action for damages from which it may be taken that they will try to establish his deliberate and wilful misconduct. The plaintiff will as a result be cross-examined on the events leading up to the death of Elijah. In the course of answering questions the plaintiff may in some way admit responsibility for murder or manslaughter. The issue, if he had been put on trial, would have been self-defence. He might give an answer inconsistent with self-defence. He might also give evidence inconsistent with statements made during the course of his three interviews with police officers, showing that he did not tell the truth. He might even commit perjury. 33If any of these things happens there will be serious consequences from which the plaintiff cannot be protected, viz: (1)The Director might reconsider the matter and charge the plaintiff with criminal responsibility for Elijah's death. (2)The Crown might deny liability for the plaintiff's tort. If that happens he will be at risk of being made a defendant and being held liable to pay damages and costs. (3)The Commissioner might take action against the plaintiff by dismissing him or imposing upon him some less serious form of discipline such as changing his posting or moving him into a lesser job. The consequences of such action will be unreviewable. 34Mr Thangaraj drew attention to her Honour's conclusion at para [13] of the judgment that any reviewable action of the kind that her Honour was dealing with would be relatively modest and was highly unlikely to follow from any evidence that the plaintiff might give. It was submitted that in coming to that conclusion her Honour considered only the evidence as it then stood. That was an error because her Honour could not assess the magnitude of the risk to the plaintiff from giving evidence without considering what he might say. In submissions filed on 27 May 2013 Mr Thangaraj wrote - (34) Assume that the Plaintiff, under cross-examination, ultimately accepts that Mr Holcombe did not move before the shot was discharged. Or assume that the Plaintiff accepts that he did not fear any danger. That is evidence, which according to the family, he might give. In combination with the evidence of Sgt Davis, that would mean that the Plaintiff fired a shot which was unjustified. It may mean that the Plaintiff was guilty of murder or manslaughter. (35) Therefore assume that the Plaintiff gave evidence in cross-examination which was consistent with the Coroner's referral to the Director and consistent with pleadings filed by the family: Would the Coroner's conclusion at [13] that any reviewable action would be 'highly unlikely to follow from any evidence Senior Constable Rich might give' be accurate? Would it be relevant that the fact that the Commissioner of Police has not yet denied vicarious liability be relevant? 35The first of the two questions posed under para (35) of the plaintiff's written submissions was an implied invitation to this court to weigh the probabilities for itself. That invitation must be declined. 36The second may have been intended to imply that in taking account of the fact that up to that time the Commissioner had taken no administrative action adverse to the plaintiff's employment her Honour had regard to an irrelevant matter. 37The risk to the plaintiff from giving evidence was a material consideration and, in so far as the certificate would not protect him, her Honour was obliged to weigh it: Attorney General of NSW v Borland per Handley AJA, with whom the other members of the Court agreed, at [18], [19]. 38Any account the plaintiff gave in evidence would leave the account he had given in interviews materially unchanged or would worsen his position. If the latter, his evidence could not be used directly or derivatively against him in the circumstances contemplated by s 61(7). Her Honour was obliged to consider the risk to the plaintiff of adverse consequences against which the subsection could not protect him. As her Honour correctly concluded, there would be no civil penalty. Her Honour considered the likelihood of administrative action. Possibly the worst kind of action would result in the plaintiff's dismissal. Her Honour considered that possibility and what might flow from it. 39In forming a view about these matters it was relevant for her Honour to take into account the fact that over the four years that had elapsed since the shooting the Commissioner had taken no action. Her Honour did not err in doing so. 40To some extent these grounds invite this Court to concern itself in the process of fact finding. To that extent the invitation must be declined: Minister for Immigration and Multicultural Affairs v Yusuf. 41I conclude that her Honour did not err in either of the ways contended for. These grounds have not been made good.

Ground 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. 42Two matters were asserted under this ground. First, it was submitted that if the plaintiff were dismissed he would suffer detriment whether or not he sought redress in proceedings for unfair dismissal and regardless of the result of any such proceedings. So to conclude that the s 61 certificate would avail the plaintiff in any such proceedings was an irrelevant matter. So her Honour erred in taking it into account. 43In my opinion her Honour's conclusion was not irrelevant. Her Honour was entitled to consider it in weighing the magnitude of the risk to the plaintiff of giving evidence. 44The second matter challenged her Honour's conclusion that the certificate would be effective in proceedings in the Industrial Relations Commission. It was submitted that it would be odd if the Commissioner could dismiss the plaintiff because of things revealed in his evidence but in defending an action for unfair dismissal could not say why the plaintiff had been dismissed. Whether that curious prospect might make the Commissioner less likely to dismiss the plaintiff need not be considered. 45The effect of s 61(7) includes that any evidence that the plaintiff gives in respect of which he has a certificate under subs (5) cannot be used against him 'in any proceeding....before any body authorised by a law of the State... to hear, receive and examine evidence.' 46Chapter 4, Part 1 of the Industrial Relations Act 1996 establishes the Industrial Relations Commission and deals with its functions. Section 146 (1) provides, in part, that the Commission has the following functions - (b) resolving industrial disputes, and (c) hearing and determining other industrial matters. 47Relevantly, s 163 is as follows - (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 48Relevantly, s 164 is as follows - (1) The Commission may exercise the functions of the Supreme Court in relation to: (a) compelling the attendance of witnesses and examining them on oath or affirmation, or by use of a statutory declaration, and (b) compelling the production, discovery and inspection of records and other documents, and (c) compelling witnesses to answer questions which the Commission considers to be relevant in any proceeding before it, and ... 49Part 6 of the Act deals with unfair dismissals. Section 84 provides for applications to be made to the Commission for remedy by dismissed employees. Section 88 deals with matters the Commission may consider in determining claims. Section 89 deals with the remedies the Commission can order. 50I will not set out the detail of these various provisions. In my opinion the sections of the Act that I have mentioned show that an application to the Industrial Commission for a remedy for unfair dismissal would commence a proceeding before a body authorised by a law of the State to hear, receive and determine evidence. 51Section 61(7) is mandatory. It would prevent the use in the Industrial Relations Commission of the plaintiff's evidence against him if he commenced proceedings for unfair dismissal. 52I conclude that her Honour did not err in either of the ways contended for. This ground has not been made good.

Ground 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. 53This ground deals with what is asserted will be the probable course of cross-examination if the plaintiff gives evidence, and the consequences. The plaintiff's submissions do not always make clear when or what error is asserted. In submissions filed on 27 May 2013 there are these paragraphs - (21) The Coroner regarded as relevant, the fact that the family wished to cross-examine the Plaintiff. (22) The family of a victim does not normally have a right to cross-examine an alleged offender. The family does not ever cross-examine an accused person. In a Coronial Inquest, the Coroner has Counsel Assisting who will ask all relevant questions. The Coroner will also ask any questions which are required. (23) In Borland v NSW Deputy State Coroner [2006] NSWSC 982 at [20], Grove J did not seem persuaded with the suggestion that the family's right to cross-examine was relevant to the question of the interests of justice. (24) The family instituted civil proceedings against the police in 2011. They allege, inter alia, that the shooting was 'unlawful' and the result of 'intentional' or 'negligent acts'. The particulars of the unlawful conduct include: 'Constable Rich did not reasonably believe that it was necessary to shoot Elijah for the purpose of defending himself or another person'; 'There was no reasonable possibility that Constable Rich's response was a reasonable response to the circumstances as he perceived them'; 'Constable Rich was not acting in self-defence.' (25) It is readily apparent that the pleadings in the civil proceedings are inconsistent with the conclusions of the Director. However the pleadings demonstrate what it is that the family will attempt to establish in any cross-examination of the Plaintiff. The family will attempt to establish that the Plaintiff is guilty of murder or manslaughter. If its cross-examination of the Plaintiff is at all successful, the family will again ask the Coroner to refer the matter to the Director. This is one of the unfair risks facing the Plaintiff if he is required to give evidence. (26) Legislation does not permit the Holcombe's to institute proceedings against the Plaintiff as a party. Therefore the named defendant is the New South Wales Police Force. However the Police Force is entitled to deny vicarious liability. As of yet, they have not done so. One would assume that that is because the Police Force, on the evidence it currently has, has concluded that Senior Constable Rich acted appropriately. (27) However the Police Force has informed the Coroner that that position may change depending upon any evidence from Senior Constable Rich. There were a number of potential reasons given as to why that may happen (T25.27 on 26/3/13). Therefore a further potential risk to the Plaintiff is that he becomes a party to the civil proceedings. That would expose him to the risk of damages and costs, as well as the stress and difficulties facing any defendant. He would also have his co-defendant, the Police, attempt to shift liability on to him. (28) The evidence of the Plaintiff is potentially admissible in the civil case being brought by the family against the New South Wales Police. The Coroner's Court should not be used as a vehicle to adduce evidence which is then to be used in civil proceedings. The family is not seeking to ask questions only to determine what happened. The family has taken a view, firm enough to result in very serious allegations in a pleading. Therefore the family is seeking to establish its already determined position. The family in fact has a financial incentive to establish that the Plaintiff acted unlawfully. 54It is unfortunate that the plaintiff has attributed a base motive to Elijah's family. They have the right to cross-examine the plaintiff if he gives evidence on matters which are relevant to the proceedings: the Act s 57(2). The Coroner has the power to control the proceedings and may limit or prevent counsel from asking questions about matters not considered relevant. 55Elijah's family have a legitimate interest in learning how Elijah died. In view of the plaintiff's statements in the interviews about things Elijah did, they also have the right to be heard in opposition to any adverse finding relating to him. 56The assertion in para (28) about evidence being 'potentially admissible' is speculative. If the remainder of the paragraph amounts to an assertion that Elijah's family are using the proceedings for an improper purpose I reject it, both on its merits and because it was not squarely put below so as to enable counsel to respond to it. 57In para (47) the plaintiff attacks her Honour's observation that orders for compensation are not civil penalties. He asserts, I think, that her Honour thereby took into account an irrelevant matter. He submits that exposure to the risk for an order for damages and costs is a risk relevant to the interests of justice even though it is not a civil penalty. So the distinction is irrelevant in the assessment of risk. 58I do not accept the submission or the implication that her Honour erred. As I have said, it was incumbent on her Honour to identify from the subject-matter, scope and purpose of the Act which considerations were mandated in determining where the interests of justice lay. It was relevant, because of the entitlement created by subs 1(b), to distinguish whether the risk involved a civil penalty. Since the intent of the Act was to give protection against the risk of civil penalty an apprehension of that risk would speak more strongly in favour of exempting a witness from giving evidence. 59In any event, the risk the plaintiff was entitled to have weighed was that which would result from the evidence he might give because of the abrogation of his right not to incriminate himself. If he were to give evidence the certificate would prevent the use against him of that evidence in any civil proceedings to which he became a party. 60Mr Thangaraj observed that because the Commissioner of Police had not denied vicarious liability for the plaintiff's torts, the sole defendant in the criminal proceedings was the New South Wales Police Force. However, he submitted, the Police Force was entitled to deny liability. He relied on paras (26) and (27) of the submissions extracted in this judgment at [53]. 61In document filed on 14 June 2013 there were these submissions - (34) The Commissioner of Police has placed on the record before the Coroner that it might not support the Plaintiff. The Commissioner will assess his position after any evidence the Plaintiff might be compelled to give. (41) ... The Commissioner placed on the record that his view might change. It would depend upon the evidence of the Plaintiff. 62What Mr Saidi said to the Coroner as recorded at pp 23-24 of the transcript of 26 March 2013, was this - SAIDI: It seems clear that Senior Constable Rich's conduct is going to continue to be attacked and whatever counsel assisting may forecast as what is going to occur in these proceedings may not necessarily be what does in fact occur, because, your Honour, any decision or any determination that's being made in relation to vicarious liability has been made on the basis of information as currently stands as currently understood. Let me give an extreme example, your Honour. ... SAIDI: Put Constable Rich in the witness box, let's take the extreme example and let the evidence of 20-25 civilian witnesses be put to him and let's assume by way of skilful cross-examination Senior Constable Rich were to say, well, you know, I got it wrong during the course of the walkthrough, yes, there are 20 witnesses, they must be right and I must be wrong and maybe I shouldn't have shot him. Now, there is an extreme example, but I am not here to forecast or prognosticate as to what he's going to say, I'm here to highlight that there are risks which exist. HER HONOUR: But it that did happen - I understand it's very unlikely, but if it did, how could that be used against him given that he would have a certificate? SAIDI: Well, the certificate will not cover any determination made by the State of New South Wales -- HER HONOUR: No, I understand that. Are you saying that it might lead to the withdrawal-- SAIDI: A denial of vicarious liability. HER HONOUR: --of acceptance of vicarious-- SAIDI: Precisely. HER HONOUR: Okay. SAIDI: Now, let's assume Senior Constable Rich were to say - and again I' m sorry to use extremes, you Honour, but let's assume he were to say, look, I was traumatised when I went through that walkthrough. That was my perception of events. I have now read the coronial brief of evidence, I can see that there are 12 witnesses who give contrary evidence, and, you know, they just might be right, and Elijah didn't take a step towards me. Well, your Honour, if it be the case on the basis of Peter Davis's evidence that that evidence be taken to be cogent, your Honour, that would mean that there was serious and lawful misconduct on the part of Senior Constable Rich. That would mean that there would be not merely a denial of vicarious liability but I'll take it a step further and I'm going to suggest that under the provisions of the State legislation he would then become a joint tortfeasor with the State of New South Wales, having been cut adrift, and he would be the subject of the issue of a potential for a cross-claim to be mounted against him, as a joint tortfeasor. 63It thus appears that Mr Saidi did no more than direct her Honour's attention to the rights of the defendant in the civil proceedings. Any explanation of the circumstances in which the rights might be exercised was hypothetical. Her Honour was entitled to assess the risk accordingly. 64Other submissions made under this ground were that the provisions of s 9B Law Reform (Vicarious Liability) Act 1983 were intended for the protection of police officers like the plaintiff. The risk to be assessed involved the consideration that he might lose that protection. That might lead to a loss of employment. Secondly, the plaintiff, unlike members of the public was obliged to take part in his interviews with police officers. 65Her Honour was aware of all these matters. None was required to be dealt with in terms. 66In carrying out the assessments set forth in the judgment at paras [13], [15] & [16] her Honour was entitled to take into account that the Commissioner had not up to that time dealt with the plaintiff adversely in his employment and had not denied vicarious liability in the civil proceedings. She was entitled to assess the several factors as set forth in the judgment. 67This ground has not been made good.

Ground 6: The Coroner erred by failing to consider, or properly consider, the accumulation of factors relied upon by the Plaintiff in argument concerning "interests of justice".

Ground 7: The Coroner erred in finding an "extreme unlikelihood of his in fact suffering any such detriment" failed to consider, or properly consider, the potential evidence that may be given. 68These grounds may be dealt with together. The first submission lit upon the way her Honour expressed her assessment of the weight to be given to the fact that the Court already had a version of facts from the plaintiff as given in his answers to questions in the interviews in which he had participated. That was a matter relevant to the need for him to give evidence. In Attorney General of NSW v Borland Handley AJA said at [19] - Another highly relevant consideration is that the Coroner already has statements from the police officers which give their version of events. He is not bound to accept those versions, and could receive any expert or other evidence which tended to contradict them. 69The submission drew attention to the first sentence of para [17] of her Honour's judgment, extracted above. It was submitted, and may be accepted, that the balance by which the interests of justice were to be determined was not to be achieved by weighing countervailing factors individually. The plaintiff was entitled to an assessment of the accumulated weight of all the factors relied on to support the case for exemption. A similar criticism was made of her Honour's conclusion in the last sentence of the same paragraph, dealing with the stated "extreme unlikelihood" of the plaintiff's suffering detriment of the kind there under consideration. 70I do not accept these submissions. The judgment as a whole shows that her Honour was well aware that the balance was to be struck and the interests of justice determined by comparing all the prevailing factors with all the countervailing factors. Having identified the issue for determination at [6] her Honour said at [7] I must make an assessment of factors existing both for and against an exercise of that discretion. Learned Counsel Assisting me, Mr J Gormly SC, argues in favour of Senior Constable Rich being required to give evidence on the basis that it is in the interests of justice overall. 71Her Honour than listed factors pointed to by counsel assisting her Honour without any suggestion that any fell to be weighed individually against any countervailing factor. Her Honour then listed the factors pointed to by Mr Saidi and Mr Thangaraj. Her Honour then began the assessment of matters affecting the plaintiff. 72At [13] her Honour assessed the chances of administrative action by the Commissioner of Police as extremely unlikely and concluded that any reviewable action taken would be relatively modest and highly unlikely to follow. There was no suggestion that her Honour was intending to weigh that matter by itself against the factors pointed to by counsel assisting the inquest. 73At [15] her Honour weighed the risk of dismissal without any suggestion of requiring it to have effective weight alone. 74At [16] her Honour assessed the risk of civil liability for damages as of little significance if not irrelevant. There was no suggestion that it would not be weighed with the other factors relied upon by Mr Thangaraj. 75It was not until the second-last paragraph of the judgment that her Honour used the language now under attack. 76I do not think that her Honour had any intention of singling out these last two factors in the manner contended for. It would be strange if, mid-judgment and without asserting reasons, her Honour had decided to change the balancing technique, to weigh the foregoing factors cumulatively but the last two individually. Her Honour's expression "without dismissing its importance in considering my discretion" when dealing with the risk of detriment seems more apt to an inclusion of the weight of that factor with the weight of other factors. 77These grounds have not been made good.

Ground 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. 78Mr Thangaraj submitted that her Honour failed to take this risk into account. He submitted to her Honour and to this Court that although evidence given by the plaintiff pursuant to her Honour's direction could not be used against him in a criminal proceeding brought by the Director, there was a way in which the Director could make indirect use of the evidence to the detriment of the plaintiff. If, for example, the plaintiff said something in evidence that showed that he had no available defence of self-defence the Director could reconsider the matter, form the opinion that there were reasonable prospects of securing a conviction and charge the plaintiff with murder or manslaughter. The protection afforded by the certificate under s 61(7) was in the terms of that subsection, confined to use "in any proceedings in a NSW court...". Those words were insufficient to prevent the Director's using the evidence in the manner contended for. 79The evidence shows that it was after the completion of the evidence of all the proposed witnesses, other than the plaintiff, that Elijah's family asked her Honour to refer the proceedings to the Director a second time. Her Honour declined to do so. Any evidence given by the plaintiff hereafter would be protected by the certificate, so the state of the evidence for the purposes of any further referral to the Director could not change. There is no reason to suppose, therefore, that her Honour may refer the proceedings to the Director again. 80Guideline 4 of the Prosecution Guidelines issued by the NSW Director of Public Prosecutions include this- The question whether or not the public interest requires that a matter be prosecuted is resolved by determining: (1) Whether or not the admissible evidence available is capable of establishing each element of the offence; (2) Whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not (3) Whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest. 81It appears that the Director's own guidelines permit a decision to prosecute to be made only in consideration of admissible evidence. That would preclude the Director's institution of criminal proceedings on the postulated basis. 82Her Honour did not deal with the submission in terms, either in summarising Mr Thangaraj's submissions or in the consideration of them. Her Honour was unlikely to have overlooked the submission and must, I think, have rejected it out of hand. In my view her Honour was entitled to do so. In my opinion her Honour's consideration of it was not mandated. 83Shortly before the time appointed for judgment to be given my attention was drawn to the judgment of the New South Wales Court of Appeal in SD v New South Wales Crime Commission [2013] NSWCA 48, and in particular to part of the judgment of Basten JA with whom Macfarlan JA agreed. 84In that matter the applicant for leave to appeal had been required to appear before the New South Wales Crime Commission, ("the Commission"), and was questioned about his knowledge of two shooting incidents. The applicant declined to answer two questions and gave as an excuse that the Commission declined to make what the applicant considered an adequate non-publication order in respect of any evidence that might result. 85The Commission rejected the refusal as unjustified. The applicant appealed to this Court and Adamson J dismissed the appeal. The application was for leave to appeal against her Honour's order. 86The privilege claimed by the applicant was that set forth in the New South Wales Crime Commission Act 1985. Relevantly, that Act was a follows: "18 Failure of witnesses to attend and answer questions etc ... (2) A person appearing as a witness at a hearing before the Commission shall not, without reasonable excuse or except as provided by section 18A or 18B: (a) when required pursuant to section 16 either to take an oath or make an affirmation-refuse or fail to comply with the requirement, (b) refuse or fail to answer a question that the person is required to answer by the member presiding at the hearing, or (c) refuse or fail to produce a document or thing that the person was required to produce by a summons under this Act served as prescribed." "18B Privilege concerning answers and documents (1) A witness summoned to attend or appearing before the Commission at a hearing is not ... excused from answering any question or producing any document or thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground. (2) An answer made, or document or thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings. (3) Nothing in this section makes inadmissible: ... (b) any answer... in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer... irrespective of the provisions of subsection (1)..." . 87Relevantly, the only immunity conferred by the Act lay in s 18B(2). That subsection would protect a witness, in appropriate circumstances, against the admission in any civil or criminal or disciplinary proceedings of any answer given or document produced to the Commission. The Act conferred no immunity from derivative use of any such answer or document. 88At [34] and [35], Basten JA said this: 34. The next question is whether any duty imposed by s 13(9) to prevent publication which might prejudice a fair trial encompassed an obligation to ensure that the transcript of evidence given before the Commission is not supplied to the Director of Public Prosecutions. The formulation of the question in these terms renders an affirmative answer difficult. First, nothing in the Crime Commission Act would support an affirmative answer. Only with some awkwardness could the release of information to the Director of Public Prosecutions be seen to constitute "publication" for the purposes of s 13(9). Secondly, no case was identified in which disclosure of material, even if inadmissible or illegally obtained, to a prosecutor has been held to give rise to an unfair trial. While misuse of such material could lead to a trial being aborted or a conviction set aside, there is no reason why the Commission should expect, or has an obligation to protect against, misuse. 35. Leaving all that aside, the artificiality and prematurity of the applicant's case remains a problem. The likelihood of different considerations arising at different times may be illustrated by reference to the second question which the applicant refused to answer. The question itself indicated that three people were believed to have been in the car when shots were fired. Each of those three might be the subject of compelled testimony before the Commission. Each might tell a different story as to where he or she was in the car and who fired a gun. Independent evidence may indicate that one or more of the statements was not to be believed. If charges were to be laid in such circumstances, it would be the responsibility of the Director to formulate appropriate charges for the purposes of an indictment: Director of Public Prosecutions Act 1986 (NSW), s 7. The Director must, of course, present a charge supported by admissible material. However, inadmissible material may demonstrate that it is inappropriate to formulate a charge in a particular way or against a particular individual. It would not obviously be in the public interest to foreclose access to that material. 89It was to the last three sentences of [35] that my attention was drawn. 90There are two reasons why what was said by Basten JA does not affect my opinion. First, the Director must be expected to act in accordance with the guidelines. Their effect is that the Director may consider inadmissible material in deciding not to prosecute, but in deciding to prosecute may consider only admissible evidence. 91Secondly, Basten JA was dealing with the use the Director might possibly make deriving from any answer given or document tendered before the Commission. As s 61(7) of the Coroners Act makes clear, a certificate under subs (5) protects a witness against derivative use. 92The remarks of Basten JA do not lead me to change my opinion that ground 8 has not been made good.

Ground 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. 93The first submission under this ground repeated the assertion which I have rejected in dealing with grounds 6 and 7, that her Honour erred in the way in which she dealt with the weight of the fact of the directed interviews. 94The second submission amounted to a restatement of the first. It was that her Honour erred in failing to take the fact of the interviews into account together with other relevant factors. It must also be rejected. 95This submission was made at (10) of the document filed on 14 June 2013 - In Borland, Grove J found that the mandatory nature of an inquest demonstrates judicial oversight by way of a Coronial [19]. His Honour did not agree that it followed that weight ought be given to a desirability that police officers should testify. At [7(a) and (c)], the Coroner in the present matter considered the mandatory nature of the Inquest. If her Honour relied upon those matters, they were irrelevant. 96In fact what Grove J said at [19] was this - It is, however, a justifiable conclusion that the provisions mandating inquest by the State Coroner or a Deputy State Coroner where police operation may have been involved show a legislative intention that there be judicial (coronial) oversight. His Honour's observation infers that weight should be given to a desirability that police officers involved in such an operation should testify. 97In para 7 & (c) of the judgment, her Honour was summarising counsel's submissions. At [17] her Honour assessed the importance of the plaintiff's contemplated evidence in the context of the case before her. However, nowhere in her Honour's reasons does it appear that her Honour was of the view that the mandatory nature of the inquest increased the need to direct the plaintiff to give evidence. 98It was also submitted that her Honour "failed to deal with" the fact that although the inquest was mandatory the discretion not to require the plaintiff to give evidence remained. As the judgment makes clear, her Honour did not doubt the continuing existence of the discretion. 99A further submission under this ground also relied on the judgment of Handley AJA in Attorney General of NSW v Borland, extracted above, at [19]. It was put that the Coroner already had an account of the events from the plaintiff, comprising his answers in directed interviews. The Coroner had other evidence as well and could use it to test the plaintiff's account. It was observed that her Honour made no mention of the existence of the plaintiff's account or of her ability to test it by comparing it with other evidence. 100In order to be worthy of consideration, this submission would have to be understood as asserting error in failing to take into account a relevant matter. The judgment shows that her Honour was well aware of the plaintiff's account and that, notwithstanding other evidence before her Honour, considered that it needed testing. 101The submission, if that is what it is, that her Honour erred in failing to take into account a relevant matter, has not been demonstrated. 102This ground has not been made good.

Disposition and Orders 103The plaintiff has failed to make a case for her Honour's direction to be quashed. 104The summons is dismissed. The plaintiff must pay the costs of the first and the third defendants.

Amendments 25 September 2013 - Additional reasons provided Amended paragraphs: Footnote 25 September 2013 - Footnote incorporated into Judgment Amended paragraphs: [83] -[92] 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: 25 September 2013