NSWNSWSC

Rich v Attorney General of New South Wales & Ors

[2013] NSWSC 877

Supreme Court of NSW|2013-06-19|Before: Barr AJ

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Court

Supreme Court of NSW

Decision date

2013-06-19

Before

Barr AJ

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Judgment (13 paragraphs)

[1]

Judgment 1The plaintiff, Andrew Rich, is a serving police officer who was involved in a confrontation in which a young man died. The State Coroner held an inquest in the course of which the plaintiff was called to give evidence. He objected to doing so. After hearing argument the State Coroner required him to give evidence. By his Second Amended Summons, filed on 19 June 2013, the plaintiff seeks these orders- 1 An order prohibiting the Second Defendant from requiring the Plaintiff to give evidence at the coronial inquest into the death of Elijah Jay Holcombe. 2 A declaration that the Second Defendant erred in ruling that it was in the interests of justice to require the Plaintiff to give evidence at the coronial inquest into the death of Elijah Jay Holcombe. 3 A declaration that the Second Defendant erred in law in requiring the Plaintiff to give evidence at the coronial inquest being conducted by the Second Defendant into the death of Elijah Jay Holcombe. 3A An order quashing the direction of the Second Defendant made on 5 April 2013. 4 Costs. 2The Attorney General of New South Wales, the first defendant, opposes the orders. The New South Wales State Coroner (the Coroner), Magistrate Mary Jerram, the second defendant, submits to the orders of the Court save as to costs. The third defendant, Jeremy Holcombe, the father of the young man, opposes the orders.

[2]

The Factual Background 3The following account is extracted and adapted from the written submissions filed by the Attorney General. It is based on evidence given before the Coroner and I do not think that it is contentious. On 2 June 2009 Mr Elijah Holcombe, whom I shall call Elijah, died from injuries he received when he was shot by the plaintiff. The plaintiff was on duty as a police officer. Elijah was 24 years old and in the latter stages of an undergraduate degree at Macquarie University. He had suffered from depression since he was about 16 years old. Early in 2008 he began to experience persecutory delusions and paranoia. He spent time in hospital in that year and was treated with anti-psychotic drugs. 4On 1 June 2009 Elijah's father travelled with him to Narrabri for a medical appointment. On the way Mr Holcombe stopped to do some errands, leaving Elijah alone in the car. He drove off in the car without his father's permission. His father went to Narrabri police station and reported that his son was missing. He told the police that his son was suffering from paranoid delusions, that he was afraid of police and that he would probably run if confronted by police. He told them that he was not alleging that his son had stolen his car, that he was just informing them that his son was missing and had taken his car. He also told the police that his son would not hurt anybody. 5Messages were broadcast over police radio. They included information that Elijah suffered from mental health problems and was frightened of police. The messages also suggested that the police should use caution as there were concerns that he might run from the police. 6At about midday on 2 June 2009 Elijah walked into Armidale police station and said that he had taken his father's car. He told the police the general area in which the car could be found and handed over the keys. He asked to be taken to hospital. A police officer took him to Armidale Rural Hospital. He was seen there by a nurse in the Emergency Department. He asked whether he were a voluntary patient and when he was informed that he was he left the hospital. 7The plaintiff and his follow officer Senior Constable Dufty had been charged with finding the missing car. They were unable to do so and, after speaking to other police officers, went to the hospital. The plaintiff spoke to a nurse, who confirmed that Elijah had left the hospital. She indicated concern about him and asked whether the police could bring him back if they found him. The same nurse told the Coroner that no certificate under s 16 Mental Health Act 2007 had been issued concerning Elijah. It would follow that the police had no right to take him back to the hospital without his consent. 8Not long after leaving the hospital the plaintiff saw Elijah in the street. The plaintiff approached him, held out the car keys and told him to come and get them. Elijah asked the plaintiff to throw him the keys. The plaintiff said words to the effect of "No, you come and get them from me". Elijah ran away. The plaintiff pursued him on foot through the streets. Elijah picked up a large bread knife from a café kitchen. The pursuit ended at Cinders Lane, Armidale. Accounts of the precise course of events there differ. However, it is clear that the plaintiff drew his firearm and fired at Elijah. He sustained gunshot wounds to the chest and died from his injuries. 9As he was obliged to by Police Regulations 2008, the plaintiff took part in directed interviews on 3 June and 11 November 2009. On 4 June 2009 he took part in an "walk-through" interview at and near the place of the shooting. He 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 he, the plaintiff, had fired because he thought that he was going to be stabbed and out of his concern for others. See the transcripts of the interview of 3 June 2009 at p 42 and of 4 June 2009 at p 17. 10An inquest was required to be heard because Elijah died as a result of or in the course of police operations: Coroners Act 2009 ss 23(d), 27 (1)(b) (the Act). The inquest began on 11 October 2010. The Coroner presided. On 29 October 2010 her Honour suspended the inquest under the provisions of s 78 (3) (b) of the Act. The power to do so arose when her Honour formed the opinion that the evidence was capable of satisfying a jury beyond reasonable doubt that a known person had committed an indictable offence, that there was a reasonable prospect that a jury would convict the known person of the indictable offence and that the indictable offence would raise the issue of whether the known person had caused the death with which the inquest was concerned: subs (1)(b). 11In those circumstances her Honour was required to forward to the Director of Public Prosecutions (the Director) the depositions and a signed statement specifying the name of the known person and particulars of the indictable offence concerned: subs (4). Her Honour complied with subs (4). 12As was appropriate, her Honour did not name the "known person" in open Court, but it was common ground that that person was the plaintiff. It was also generally understood that in referring the matter to the Director her Honour must have concluded that the evidence was capable of leading a jury to reject a defence of self-defence. 13In 2011 members of Elijah's family instituted civil proceedings against the police seeking damages. They alleged that the shooting was unlawful and was the result of intentional or negligent acts. Particulars of unlawful conduct included- 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. 14The action is a police tort claim as that expression is defined in s 9B Law Reform (Vicarious Liability) Act 1983. By subs (2) a plaintiff may not sue the police officer concerned but may sue the Crown. By subs (3) the plaintiff may join the police officer concerned only if the Crown denies that it would be vicariously liable if it were established that the officer had committed the tort. 15The Crown has not denied vicarious liability for any act of the plaintiff. However, the Law Reform (Vicarious Liability) Act permits it to do so. Sections 9C and 9D prescribe the procedure to be followed if it does. 16On 28 August 2012 the Director wrote to the plaintiff and Elijah's family advising that he had determined not to commence proceedings against the plaintiff for murder, manslaughter or any other criminal offence arising out of Elijah's death. In his letter to Elijah's family the Director further advised that it was his view that there were no reasonable prospects of the Crown proving beyond reasonable doubt that the plaintiff's response was not a reasonable one in the circumstances as he perceived them. 17Following the Director's determination, her Honour resumed the inquest pursuant to s 79 of the Act. The hearing resumed on 25 March 2013. 18On resumption Senior Counsel assisting the Coroner identified four matters remaining for determination, viz: (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. 19The evidence continued. Senior Constable Dufty, who had accompanied the plaintiff shortly before his firearm was discharged, but who was not present when it was, and Senior Sergeant Peter Davis, a witness with expertise in the use of force by police, gave evidence. After Senior Sergeant Davis' evidence Counsel for the Holcombe family requested her Honour again to refer the papers to the Director. Her Honour heard argument about that and declined to refer the papers. 20On 25 March 2013 the plaintiff was called to give evidence. He told the Court his name, rank and station. He was asked whether he objected to giving evidence and he said that he did. He later said that he objected to giving evidence on the ground that the evidence might tend to prove that he had committed an offence against or arising under an Australian law, or that he was liable to a civil penalty. He also stated that he was not prepared to give evidence willingly if granted a certificate under s 61 of the Act. 21The sections of the Act relevant for present purposes are these- 58 Rules of procedure and evidence ... (2) Except as otherwise provided by this Act, a witness in coronial proceedings who is a natural person cannot be compelled to answer any question or produce any document that might tend: (a) to incriminate the witness 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. 61 Privilege in respect of self-incrimination (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. (2) The coroner in the coronial proceedings must determine whether or not there are reasonable grounds for the objection. (3) If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness: (a) that the witness need not give the evidence unless required by the coroner to do so under subsection (4), and (b) that the coroner will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The coroner may require the witness to give 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. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the coroner must cause the witness to be given a certificate under this section in respect of the evidence. (6) The coroner is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the coroner finds that there were reasonable grounds for the objection. (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. (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) A reference in this section to doing an act includes a reference to failing to act. (10) A certificate under this section can only be given in respect of evidence that is required to be given by a natural person. 22Her Honour received oral and written submissions from the parties on the question whether it were in the interests of justice to require the plaintiff to give evidence pursuant to s 61. The plaintiff and the Commissioner of Police each contended that it was not in the interests of justice. Counsel assisting the Coroner and counsel for the family of Elijah each contended that it was in the interests of justice for the plaintiff to be required to give evidence. 23On 5 April 2013 her Honour delivered a judgment in writing as follows - 1. An objection has been taken under s 61 of the Coroners Act 2009 ("the Act") by Senior Constable Rich to giving evidence in proceedings concerning the death of Elijah Holcombe at Armidale on June 2, 2009. Senior Constable Rich has been called to give evidence at the further hearing of this inquest. I resumed the inquest following a decision of the DPP not to commence any proceedings against Senior Constable Rich for any criminal offence arising from Elijah's death. The inquest had been suspended on October 29, 2010 and referred to the DPP under s 78(1 )(b) of the Act. 2. I am satisfied that there are reasonable grounds for the objection and that the witness has been properly informed according to s 61(3) of the Act. Senior Constable Rich has indicated that he will not give the evidence willingly under the protection of a certificate granted pursuant to s 61. 3. Mr Thangaraj SC for the Senior Constable, and Mr Saidi for the Commissioner of Police submit that Senior Constable Rich should not be so compelled. Mr Shelter for the family of Elijah Holcombe advises that the family desire to hear Senior Constable Rich's evidence in order to hear how their son came to die by a gunshot fired apparently by Constable Rich. 4. Important principles are at stake. As Mr Thangaraj points out, it is necessary first to have regard to s 58(2), which relevantly provides as follows: "Except as otherwise provided by this Act, a witness in coronial proceedings who is a natural person cannot be compelled to answer any question... that might tend: (a) in criminate the witness 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." 5. Section 61(4) grants a discretion to the Coroner to require a witness to give evidence if satisfied as to both the matters in s 61(4)(a) and (b). If the Coroner exercises that discretion so as to require the witness to give the evidence, she must cause the witness to be given a certificate under s 61(5), the effect of which is provided in s 61(7). 6. It was common ground that s 61(4)(a) was irrelevant in the context of this matter and that the issue to be determined lay within s 61(4)(b), namely, whether the interests of justice require that Senior Constable Rich give the evidence. 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. I have carefully considered the following matters concerning that submission: (a) The Coroner's statutory duty to record full findings in respect of manner and cause of death under s 81 of the Act are not adequately fulfilled without hearing from the officer who discharged his firearm, his version of the tragedy and its reasons, and his state of mind. (b) The Act provides for the legitimate interests of family to participate in inquests by requiring leave to be granted to appear and be legally presented. The family of Elijah Holcombe is legally represented and have a legitimate interest in hearing from Senior Constable Rich, and questioning and testing his version. (c) This is a mandatory inquest pursuant to ss 23(c) and 27(1 )(b) of the Act, as Elijah's death occurred as a result of, or in the course of police operations. Accordingly, it will form part of the State Coroner's Annual Report to the Attorney General, which is tabled before both Houses of Parliament. Without the Court hearing Senior Constable Rich's evidence, that report will lack an important component. (d) There is an enormous public interest in hearing the police officer's version in full when a civilian is killed by an officer. The right of a police officer to carry and use a firearm is an entitlement allowed to few others. To give the Court and the family of Elijah his explanation of why he shot Elijah may fairly be expected as a counterpart in public accountability of that entitlement. (e) Senior Constable Rich would be protected from all reviewable decisions (including dismissal under s 181D of the Police Act 1990) and all criminal consequences of giving oral evidence by the issue of a certificate. Whilst the Commissioner of Police, under the Police Act 1990, can take actions that are not reviewable, they are relatively minor in comparison and include such things as reprimand, warning, restricted duties and the recording of adverse findings. 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. 9. The counter arguments to requiring Senior Constable Rich to give evidence are put by Mr Saidi for the Police Commissioner and Mr Thangaraj SC for Senior Constable Rich. 10. Mr Saidi primarily argues that a s 61 Certificate would provide no protection against the evidence being used to inform a decision by the State of NSW to refuse to accept vicarious liability for Senior Constable Rich in the context of civil proceedings under s 9B of the Law Reform (Vicarious Liability) Act 1983, potentially leaving Rich exposed to a liability for civil damages. In arguing this, the interests of Senior Constable Rich and the Commissioner appear to have been conflated. They are not necessarily in alignment on this point. He also submits that a certificate does not protect the Commissioner where vicarious liability is not refused, as the certificate only provides that the evidence given under certificate "cannot be used against the person" (i.e. who actually gives the evidence). Mr Saidi describes the "interest of justice" as a very broad concept, affecting and extending to every other interested party, including the Commissioner. 11. Mr Thangaraj, in seeking to protect Senior Constable Rich from being required to give evidence, concurs with the arguments of Mr Saidi. He then urges that the Court should consider primarily s 58 of the Act, and consider not why Rich should give evidence but rather his right not to. He relies strongly on Borland v NSW Deputy State Coroner & Ors [2006] NSWSC 982 in which at first instance, Grove J upheld an appeal against the Coroner who required a Constable to give evidence without giving a reason why the interests of justice provoked the requirement. The Court of Appeal subsequently upheld the decision of Grove J in Attorney General of NSW v Borland [2007] NSWCCA 201, Handley AJA holding (at [19]) that in exercising the Coroner's discretion, the fact that a (now s 61) certificate would not protect the witness against the risk of a civil penalty was "a most material consideration". 12. Further submissions by Mr Thangaraj were: (a) Senior Constable Rich has already given two Directed Interviews, the first virtually contemporarily with the shooting, and taken part in a walkthrough. Consequently, we are not left in a vacuum as to Rich's view of events. (b) Sections 173 and 181D of the Police Act do enable serious action to be taken against Senior Constable Rich, and there remains the possibility of Senior Constable Rich's evidence being used by the Police Commissioner in a decision to take such action, including possible dismissal. If that were to occur, Senior Constable Rich's only recourse would only be to seek a review in the Industrial Commission. (c) There is insufficient evidence regarding mental illness and police training in its consequences for the Court to consider making any Recommendations regarding that factor. CONCLUSION 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) 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

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.

Rich v Attorney General of New South Wales & Ors

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