Attorney General of NSW v Borland and 2 Ors - [2007] NSWCA 201

NEW SOUTH WALES COURT OF APPEAL

CITATION: ATTORNEY GENERAL OF NSW v BORLAND & 2 ORS [2007] NSWCA 201

FILE NUMBER(S):
2006/40617

HEARING DATE(S): 07/05/2007

JUDGMENT DATE: 15 August 2007

PARTIES:
Attorney General of New South Wales - Appeallant
Anthony John Borland - 1st Respondent
NSW Deputy State Coroner, Magistrate C Milovanovich - 2nd Respondent
Brenda Phillips - 3rd Respondent

JUDGMENT OF: Ipp JA McColl JA Handley AJA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 12422/2006

LOWER COURT JUDICIAL OFFICER: Grove J

LOWER COURT DATE OF DECISION: 31 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
NSWSC 982

COUNSEL:
Apellant: L. Babb & S. Free
Respondents: B. Walker SC & P. McGrath

SOLICITORS:
Appellant: IV Knight - Crown Solicitor
R1: Walter Madden Jenkins
R2: Crown Solicitor's Office
R3: Nick Boyden Lawyers

CATCHWORDS:
EVIDENCE – EXPOSURE TO CIVIL PENALTY – PRIVILEGE
CORONER’S COURT – EXPOSURE TO CIVIL PENALTY – STATUTORY CERTIFICATE - DISCRETION

LEGISLATION CITED:
Coroners Act 1980
Supreme Court Act 1970

CASES CITED:
Honeywood v Munnings [2006] NSWCA 215
IRC v Dowdall, O'Mahoney & Co Ltd [1952] AC 401
R v Travers (1957) 58 SR 85
Police Service Board v Morris (1985) 156 CLR 397
Rich v ASIC (2004) 220 CLR 129
The Daniels Corporation Pty Ltd v ACCC (2002) 213 CLR 543
West Midland Baptist Association v Birmingham Corporation [1970] AC 874

DECISION:
See para [21]
1. Grant leave to appeal effective on and from 28 September 2006 so as to deem competent the appeal instituted that day
2. Dispense with further compliance with the Rules
3. Vary the orders below by adding an order quashing the direction of the Coroner
4. Appeal otherwise dismissed
5. The Appellant to pay the costs of the first respondent, and the costs of the third respondent as a submitting party

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40617/06
IPP JA
McCOLL JA
HANDLEY AJA
WEDNESDAY 15 AUGUST 2007

ATTORNEY GENERAL OF NEW SOUTH WALES v ANTHONY JOHN BORLAND & 2 ORS

EVIDENCE – EXPOSURE TO CIVIL PENALTY – PRIVILEGE
CORONER’S COURT – EXPOSURE TO CIVIL PENALTY – STATUTORY CERTIFICATE - DISCRETION

The first respondent is a police officer who was involved in the pursuit of a motorcycle which ended in the death of the rider. He sought to be excused from giving evidence at the inquest into the rider’s death on the ground that that might expose him to a civil penalty in the form of disciplinary action by the Commissioner of Police. The Deputy State Coroner rejected the application, and under s. 33AA of the Coroners Act 1980, ordered the officer to give evidence. The section allowed the Coroner to issue a certificate to prevent the evidence of a witness being used against him in any proceedings in a NSW court. The first respondent brought proceedings in the Supreme Court to challenge the Coroner’s order. The primary judge held that the Coroner had erred in the exercise of his discretion because he had failed to take into consideration the fact that a certificate would not protect the officer from the use of his evidence by the Commissioner of Police outside court proceedings. The Attorney General sought leave to appeal.

HELD:

Under s. 33AA, the Coroner had a discretion to sustain or overrule an objection by a witness to giving evidence which might expose him to a civil penalty.
In exercising this discretion, the fact that a s. 33AA certificate would not protect the witness against the risk of a civil penalty was a most material consideration.

ORDERS

Grant leave to appeal effective from 28 September 2006 so as to deem competent the notice of appeal filed that day.
Dispense with further compliance with the Rules
Vary the orders below by adding an order quashing the direction of the Coroner.
Appeal otherwise dismissed.
The appellant to pay the costs of the first respondent, and the costs of the third respondent as a submitting party.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40617/06
IPP JA
MCCOLL JA
HANDLEY AJA
WEDNESDAY 15 AUGUST 2007

ATTORNEY GENERAL OF NEW SOUTH WALES V ANTHONY JOHN BORLAND & 2 ORS

Judgment

IPP JA: I agree with Handley AJA
MCCOLL JA: I agree with Handley AJA.
HANDLEY AJA: Maxwell Phillips died early on the morning of 1 August 2004 after a motorcycle he was riding left the roadway and crashed. At the time he was being followed by a police vehicle driven by Senior Constable Borland who was accompanied by Constable Ross (the police officers). They were the first police officers on the scene after the accident. Section 13A(1)(b) of the Coroners Act 1980 requires any inquest into the death of a person "as a result of or in the course of police operations" to be conducted by the State Coroner or Deputy State Coroner, and there must be an inquest in such a case: s14B(1)(b).
The police officers were interviewed by other police and answered questions as they were obliged to do by Police Regulation 9(1): R v Travers (1957) 58 SR 85; Police Service Board v Morris (1985) 156 CLR 397.
An inquest before the Deputy State Coroner (the Coroner) commenced on 19 April 2006, and the statements of the police officers were in evidence. On the second day counsel for the police officers applied for them to be excused from giving evidence (Blue 67) because of the risk of a civil penalty in the form of disciplinary action against them, including possible dismissal from the Force, to which they could be exposed. The Coroner held that s31 gave him the right to call witnesses and he rejected the application.
Section 33AA enables a Coroner who is a Magistrate to overrule an objection to giving evidence on the ground that it may tend to prove that the witness has committed an offence or is liable to a civil penalty. However the witness must be given a certificate which will prevent his evidence being used against him in "any proceedings in a NSW court". The Coroner held, in terms of s33AA(3), that it was in the interests of justice that the police officers be required to answer questions and this overrode their personal interests even if they would not be protected by a certificate.
Senior Constable Borland (the police officer) was then called and sworn. After giving his name, rank and station, he declined to answer further questions on the ground that the answer might tend to incriminate him of an offence. His counsel then sought and was given an adjournment to enable the Coroner's ruling to be tested in the Supreme Court.
Proceedings which challenged the order requiring the police officer to give evidence were heard by Grove J. It was common ground that the risk of disciplinary action against the police officer attracted the civil penalty privilege if it was available in the Coroners Court.
Grove J held that the Coroner had failed to balance the importance of the potential evidence of the witnesses against the magnitude of the risk to which they would be exposed. An element of that risk, and a material consideration in the exercise of the discretion, was that a certificate under s33AA would not provide any protection against the use of the evidence where a civil penalty in the form of disciplinary action could be imposed by the Commissioner of Police without court proceedings. He held therefore that the Coroner's exercise of the discretion to require the police officers to give evidence had miscarried.
The then Crown Advocate argued before Grove J that civil penalty privilege (the privilege) was not a substantive right, but a rule of evidence which did not apply in an inquest because s33 provided that the Coroner was not bound to observe the rules of evidence. The juridical status of the privilege awaits authoritative determination by the High Court, but the most recent dicta reject the view that it is a substantive right. In The Daniels Corporation Pty Ltd v ACCC (2002) 213 CLR 543, 559, Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
“…the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. However, there seems little, if any, reason why that privilege should be recognised outside judicial proceedings. Certainly no decision of this Court says it should be so recognised, much less that it is a substantive rule of law.”
Then in Rich v ASIC (2004) 220 CLR 129, 142 Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
“…the privilege against exposure to penalty now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. That is not to say that the privileges against exposure to penalties or exposure to forfeitures are substantive rules of law, like legal professional privilege, having application beyond judicial proceedings. “
The Crown Advocate submitted before Grove J that s33AA assumed that the privilege was available in the Coroner's Court, but did not confer the privilege if it was otherwise only a rule of evidence. An erroneous belief by Parliament about the existing state of the law does not necessarily enact that assumption into law: IRC v Dowdall, O'Mahoney & Co Ltd [1952] AC 401, 407, 426; West Midland Baptist Association v Birmingham Corporation [1970] AC 874, 898; Honeywood v Munnings [2006] NSWCA 215, [37] - [40].
It was therefore submitted that there was no basis for the objection and the Coroner's ruling should be upheld. Grove J rejected this submission, made a declaration that the Coroner had erred in law and directed him to re-exercise the discretion according to law.
The Attorney General appealed as of right to this Court but his counsel conceded that s101(2)(r) of the Supreme Court Act applied and the appeal was incompetent. Leave to appeal was sought, and since the question is of some importance, leave should be granted.
The police officer filed a notice of contention (it should have been a cross-appeal) which asserted that the Coroner had no power to overrule a claim to the privilege and compel answers to questions where a certificate would not protect the witness. If this point were upheld the Magistrate’s direction would be quashed and he would not be directed to re-exercise the discretion.
The appeal and contention point turn on the effect of ss33 and 33AA. These provide:
s33 A Coroner holding an inquest … shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law, but no witness shall, except in accordance with s33AA, be compelled to answer any question which criminates the witness, or tends to criminate the witness of any offence.
s33AA(1) This section applies if a witness at an inquest … held by a Coroner who is a Magistrate objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty.
(2) The Coroner is to cause the witness to be given a certificate under this section in respect of the evidence if the objection is overruled but, after the evidence has been given, the Coroner finds that there were reasonable grounds for the objection.
(3) If the Coroner is satisfied that the evidence concerned may tend to prove that the witness has committed an offence or is liable to a civil penalty but that the interests of justice require the witness to give evidence, the Coroner may require the witness to give the evidence. If the Coroner so requires, the Coroner is to cause the witness to be given a certificate under this section in respect of the evidence.
(4) In any proceedings in a NSW court (within the meaning of the Evidence Act 1995):
(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 that answer,
cannot be used against the person …
(5) …
In my judgment s33AA(1) confers the privilege in the clearest terms. The section applies, that is operates, if the witness objects to giving evidence on the ground that it may tend to prove that he is liable to a civil penalty. Subsections (2) and (3) then confirm and regulate the Coroner’s discretion to sustain or overrule the objection. Counsel for the Attorney General conceded that if the Coroner had a discretion the appeal should fail (T9).
If the witness is liable to a civil penalty enforceable in a court of this State a certificate under s33AA(3) would confer a substantial measure of protection against the use of his evidence against him. Even then the Coroner has a discretion under subs(3) to relieve the witness from the obligation to answer. However a certificate under subs(3) confers no protection in a Federal Court, in a court of another State, in a tribunal in this State which is not a court, or in cases where the penalty may be imposed by administrative action.
The fact that a certificate would not protect the witness against the risk of a civil penalty to which he would be exposed is a most material consideration in the exercise of the discretion. Another highly relevant consideration is that the Coroner already has statements from the police officers which give their version of the events. He is not bound to accept those versions, and could receive any expert or other evidence which tended to contradict them.
Although these considerations are highly relevant, they do not eliminate the discretion conferred in terms by s33AA(3). There is a discretion, and therefore the appeal fails and the notice of contention must also be overruled.
These are proceedings for judicial review as there is no right of appeal from an interlocutory or final decision of a Coroner. Consequently an order should have been made quashing the direction of the Coroner in addition to the declaration. The following orders should be made:
1.Grant leave to appeal effective on and from 28 September 2006 so as to deem competent the appeal instituted that day.
2.Dispense with further compliance with the Rules.
3. Vary the orders below by adding an order quashing the
direction of the Coroner.
4.Appeal otherwise dismissed.
5.The Appellant to pay the costs of the first respondent, and the costs of the third respondent as a submitting party.

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LAST UPDATED: 15 August 2007