1 HIS HONOUR: This is an appeal by way of stated case from the decision of a magistrate dismissing an information against the respondent, Mark Alfred Clarkson, for refusing to take the oath as a witness at an inquest. The appellant, William Edwin Wright, who is a police officer, was the informant.
2 On 27 October 1994 the respondent attended the inquest into the suspected death of Christopher Dale Flannery, in answer to a summons to give evidence. He refused to be sworn or affirmed, claiming his privilege against self-incrimination. When first called, he said, "I respectfully refuse to prejudice my defence to any proceedings that may be instituted against me by making any form of statement or by answering any questions whatsoever." He claimed to be able to "take a blanket exemption to giving evidence per se". Later, when reminded that it is an offence under the Coroners Act 1980 to refuse to be sworn as a witness without lawful excuse, he maintained that his privilege against self-incrimination amounted to a lawful excuse for the purposes of the legislation. He did not advance any reason why his evidence at the inquest might tend to incriminate him: nor was he asked to.
3 In due course, the appellant laid an information against the respondent alleging that, being a person who had appeared upon summons to give evidence at the inquest, he had, without lawful excuse, refused to take the oath: an offence under s42(1)(a) of the Coroners Act. That section provides as follows:
42 Refusal of witness to be examined
(1) A person who appears, whether or not upon summons or warrant, to give evidence or to produce any document or writing at an inquest or inquiry and who, without lawful excuse:
(a) refuses to take the oath,
(b) refuses to be examined upon oath,
(c) having taken the oath, refuses to answer any question relevant to the subject-matter of the inquest or inquiry, or
(d) refuses or neglects to produce the document or writing,
is guilty of an offence against this Act.
(2) The reference in sub-section (1) to an oath is, in relation to a person who objects to taking an oath, a reference to an affirmation referred to in section 12 of the Oaths Act 1900 .
4 On 23 November 1994 the matter was heard by a magistrate at North Sydney Local Court. It seems that the only evidence before his Worship was the transcript of the proceedings before the coroner when the respondent was called at the inquest. His Worship noted that the appellant did not challenge the bona fides of the respondent's claim of privilege against self-incrimination, and rejected a submission on behalf of the appellant that such a claim could not amount to "lawful excuse" within the meaning of s42(1) of the Act. Accordingly, having concluded that the appellant had failed to establish that the respondent's refusal to take the oath was without lawful excuse, he dismissed the information.
5 Express provision for reliance upon the privilege against self-incrimination is to be found in the Coroners Act. Section 33 provides:
33 Rules of procedure and evidence
A coroner holding an inquest or inquiry shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law, but no witness shall be compelled to answer any question which criminates the witness, or tends to criminate the witness, of any felony, misdemeanour or offence.
6 In this Court, over objection, the respondent read an affidavit containing material about which he might have been examined at the inquest, and which might fairly have given rise to a claim of privilege. It is difficult to see how evidence which was not before the magistrate could be received in this Court on an appeal by way of stated case. I allowed the affidavit to be read upon the basis that I would determine its relevance in due course. In the event, I reject it as irrelevant. Counsel for the appellant readily conceded that "there may have been lines of questioning in the inquest which may have raised a right to claim privilege". The submission for the appellant, in this Court and in the Local Court, was that that fact does not entitle a person summoned as a witness at an inquest to refuse to be sworn (or affirmed), as opposed to refusing to answer particular questions or to respond to a line of questioning.
7 The respondent's appearance before the coroner occurred before the Evidence Act 1995 came into force. In any event, I respectfully agree with Adams J that the Evidence Act, including the provision for the protection of a witness from self-incrimination in s128, does not apply to an inquest: Decker v State Coroner of NSW & Anor [1999] NSWSC 369.
8 A valuable summary of the principles governing the privilege against self-incrimination is to be found in the judgment of Kirby P (as he then was) in Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 420-4. Among the enumerated points in that passage is the following (at 423):
7. It is for the presiding judicial officer to determine whether the objection taken is good and whether there are reasonable grounds for the belief on the part of the witness that he or she is, or may be, in peril of future criminal or like proceedings if the answer is given. Just as the court must protect the privilege, it must also make sure that the rule is not abused; but applied only where its invocation is justified: see Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 at 403. The proper procedure in a claim for privilege is to object to each question as it is asked: see Ex parte Reynolds (at 294); Brebner v Perry [1961] SASR 177 at 180. It is not proper to refuse to be sworn or to decline to answer any questions at all or to claim a global protection from the privilege. Such a refusal may amount to a contempt of court: see Smith v The Queen (1991) 25 NSWLR 1 at 9. Nevertheless, a point will be reached in questioning where it will be unnecessary to persist with an entire cross-examination which is clearly futile by reason of the invocation of the privilege against self-incrimination. To demand a tedious repetition of questions, rebuffed every time by a claim of privilege which is upheld, would be pointless…
9 In the case of Smith v The Queen, to which the President referred, Arthur Stanley Smith and Glenn Roderick Flack had been charged with the murder of a man at Coogee in 1987. The Crown proposed to proceed against them both on a single indictment, but McInerney J ordered that they have separate trials. Smith was the first to be tried. In February 1990 he was found guilty and in the following month he was sentenced to penal servitude for life. In that same month Flack was brought to trial and the Crown called Smith as a witness in its case.
10 At that stage Smith had either filed an appeal against his conviction and sentence or was about to do so. He expressed concern about his position should he be granted a new trial, contending that any evidence he might give in the trial of Flack might tend to incriminate him. The trial judge, Badgery-Parker J, explained that he had the right to object to particular questions on that basis but said that he would not permit him "to simply make a blanket refusal to give evidence". However, Smith maintained his stance despite that ruling and despite the Crown prosecutor's assurance that, apart from eliciting his presence at the scene of the alleged murder, he would not ask him any question which could incriminate him.
11 In due course, Badgery-Parker J convicted Smith of contempt of court and that conviction was upheld by the Court of Appeal. Delivering the leading judgment, Kirby P said (at 10-11):
These are good reasons for adhering to the rule that to refuse to be sworn (or to affirm) or to give evidence such as occurred here amounts to a serious contempt in the face of the court. It is serious because courts decide cases on the basis of evidence. If evidence is unjustifiably withheld, the administration of justice is impeded: see Registrar of Court of Appeal v Gilby (Court of Appeal, unreported 20 August 1991 at p2). Whilst there may be cases which would render such a blanket refusal justifiable, it is difficult to conceive of them. This case is not one of them.
12 Even in the case where a blanket refusal to give evidence might be justifiable, I do not understand the President in that passage to suggest that the witness would be entitled to refuse to be sworn or affirmed. This, however, was the question which determined the outcome of the proceedings from which the present appeal is brought.
13 The respondent was unrepresented in this Court, as he had been before the magistrate. Nevertheless, he argued his case with considerable ability. While he is not a legal practitioner, I understand that he has a law degree from New Zealand. He relied on R v Rutledge, ex parte Laidlaw [1923] St.R.Qd 284. In that case Ms Laidlaw, who was the proprietor of a hospital at which a woman died as the result of an abortion, was summoned as a witness at the inquest into the woman's death. The abortion, of course, was unlawful. Ms Laidlaw refused to be sworn or to be examined, whereupon the magistrate conducting the inquest committed her to prison. In proceedings for a writ of habeas corpus, Lukin J expressed the view in argument that the answer to any question relevant to the inquest might tend to incriminate Ms Laidlaw. His Honour also raised the question whether that entitled her to refuse to be sworn, but he did not determine it. In the event, the Crown decided not to require her to give evidence at the inquest and consented to an order that she be discharged.
14 Accordingly, no judgment was delivered in Rutledge and the report of the case provides authority for nothing. Certainly, there may be cases where it appears that the answer to any question relevant to the subject matter of the proceedings might incriminate the witness: see, for example, R v The Coroner; ex parte Alexander [1982] VR 731. A blanket objection to giving evidence might then be sustainable, but that is not a matter which I need decide. I am satisfied that, even in that event, the witness may not refuse to be sworn or affirmed.
15 I should add that there was nothing before the magistrate in the present case to suggest that the privilege against self-incrimination might have been claimed in response to any question relevant to the inquest. (Nor, I might add, does that appear from the additional material in the affidavit of the respondent to which I have referred in par 6 of these reasons.)
16 The distinction between a refusal to be sworn and a refusal to give evidence was spelled out by Griffith CJ in Clough v Leahy (1905) 2 CLR 139, an appeal arising from the respondent's conviction for refusing, without reasonable excuse, to be sworn at a Royal Commission, an offence under the Royal Commissioners Evidence Act (NSW) 1901. The judgment was concerned primarily with the question whether the Royal Commission in question had been lawfully established. Having held that it had been, the Chief Justice (with whom Barton and O'Connor JJ concurred) continued (at 162-3):
The only question then is, the Commission having been issued for purposes not unlawful, did the respondent give any reasonable excuse for refusing to be sworn? This was the charge against him; and of it he was clearly guilty. If the charge against him had been that, having been sworn, he refused without reasonable excuse to answer questions put to him, an entirely different set of considerations would arise, upon which it might be unwise to speculate. What is a reasonable excuse for refusing to give information is a matter which may well be dealt with when it arises.
17 One obvious reason why a person claiming the privilege against self-incrimination cannot refuse to be sworn or affirmed is that the soundness or bona fides of the claim may have to be determined: see the passage from Accident Insurance Mutual Holdings Ltd v McFadden referred to above (par 8); see also Gamble v Jackson [1983] 2 VR 334, per Starke J at 335-6. It is appropriate that the assertion of the privilege, and any statement made to demonstrate its availability, should be subject to the sanction of an oath or affirmation.
18 Accordingly, the respondent's claim of the privilege could not amount to a lawful excuse, within the meaning of s42(1) of the Coroners Act, for refusing to take the oath at the inquest. The expression "lawful excuse" is significantly narrower than "reasonable excuse": Ganin v NSW Crime Commission (1993) 32 NSWLR 423 at 437. No other lawful excuse was suggested. The respondent bore an evidentiary onus to raise matter which might constitute lawful excuse although, if he had done so, the appellant would have borne the persuasive burden to negative it: Spautz v Williams [1983] 2 NSWLR 506, per Hunt J (as he then was) at 532-3.
19 Admittedly, it is difficult to conceive of a case where a witness would have a lawful excuse to refuse to be sworn or affirmed. Counsel for the appellant referred me to the Commercial Bank of Scotland (Limited) and Maceachrin v Lloyds General Italian Assurance Company (1886) 2 TLR 780, in which an overseas witness refused to be sworn because he had been kept in England for a lengthy period and claimed that the expenses which had been afforded him by the party who had subpoenaed him were inadequate. Field J declined to deal with him for contempt, noting that his stance was not taken "for any contemptuous reasons" and the case proceeded without his evidence. It seems that that case has never been followed, and I agree with counsel for the appellant that it is never likely to be.
20 The respondent relied upon the common law rule against double jeopardy, and the related principle that a statutory right of appeal expressed in general terms should not be construed as conferring upon a prosecutor a right to appeal against an acquittal, discussed in Davern v Messel (1984) 155 CLR 21. However, it appears that that principle springs from the notion that a jury's verdict of not guilty is inviolate: see the judgment of Mason and Brennan JJ (as they then were) at 52. For that reason, their Honours noted, the Australian cases demonstrate "less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment…". Gibbs CJ, with whose reasons Wilson and Dawson JJ agreed, expressed the same view. After an examination of authority, the Chief Justice concluded (at 38) that it "is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices". Certainly, prior to the recent amendments to the Justices Act 1902, the appeal by way of stated case was commonly resorted to by informants in summary criminal proceedings.
21 The respondent also submitted that, even if I were to find the learned magistrate in error, I should not intervene in the exercise of a residual discretion of the kind familiar in Crown appeals against inadequacy of sentence: Griffiths v The Queen (1976-7) 137 CLR 293, per Jacobs J at 326-7. However, that discretion arises from considerations peculiar to appeals of that kind and has no place in the present case. Certainly, there are factors which might influence the outcome of the matter upon its remission to the magistrate. By the time this appeal came on for hearing the inquest had been concluded and it is now some years since the offence is alleged to have been committed (due, in part, to my own delay in delivering this judgment). Nevertheless, the appellant is entitled to succeed.
22 Counsel for the appellant raised the possibility of my recording a conviction of the respondent, but did not press it. The preferable course, I think, is that commonly adopted in these cases. The appeal is allowed and the matter is remitted to the learned magistrate to be dealt with according to law. I shall hear the parties on costs.