Attorney General of NSW v Borland and 2 Ors

The appeal before the Court of Appeal of New South Wales concerned the Attorney General of NSW and three respondents, including a Coroner. The dispute arose from a Coroner's direction to a witness to answer questions that might expose them to civil penalties, despite the witness's objection on those grounds. The central issue was the interpretation and application of sections 33 and 33AA of the relevant legislation governing coronial inquests.

The court was required to determine whether section 33AA of the *Coronial Inquests Act* conferred a privilege against self-incrimination in relation to civil penalties, and if so, the scope of the Coroner's discretion to compel evidence despite such a claim. Specifically, the court had to consider whether a certificate issued under section 33AA provided adequate protection against the use of evidence in all relevant proceedings, and how the limitations of this protection should inform the Coroner's discretionary power.

The court reasoned that section 33AA clearly conferred a privilege where a witness objected to giving evidence on the grounds that it might tend to prove liability to a civil penalty. It was held that the Coroner had a discretion to overrule such an objection if satisfied that the interests of justice required the evidence, but that this discretion must be exercised having regard to the limitations of the protection afforded by a certificate issued under the section. The court noted that a certificate under section 33AA does not protect against the use of evidence in Federal Courts, courts of other States, or tribunals not considered courts, nor against penalties imposed by administrative action. This lack of comprehensive protection was a material consideration in the exercise of the Coroner's discretion.

The appeal was allowed in part. Leave to appeal was granted, and the orders below were varied to quash the Coroner's direction. The appeal was otherwise dismissed, and the Appellant was ordered to pay the costs of the first and third respondents.