Bauwens v The Territory Coroner - [2022] NTSC 92

CITATION:Bauwens & Anor v The Territory Coroner [2022] NTSC 92
PARTIES:BAUWENS, Lee

and
ROLFE, Zachary
v
THE TERRITORY CORONER
and
ATTORNEY-GENERAL OF THE NORTHERN TERRRITORY
and
NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY
and
NORTHERN TERRITORY POLICE FORCE
and
WALKER, Alice; LANE, Joseph; ROBERTSON, Rickisha

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-02673-SC
DELIVERED:  12 December 2022
HEARING DATES:  23 & 24 November 2022
JUDGMENT OF:  Kelly J

CATCHWORDS:
Coroners Act 1993 (NT) (“the Act”) – application for declarations that common law penalty privilege is not abrogated by the Act; and that, notwithstanding s 38 of the Act, in respect of any questions the answers to which would tend to subject or expose the plaintiffs to a penalty the plaintiffs are entitled to refuse to answer the question(s); and the Coroner cannot direct or compel them to answer the question(s) – declarations refused.
Coroners Act1993 (NT) s 4(3), s 6(2), s 7, s 19, s 20, s 21, s 24, s 25, s 26, s 34, s 35, 36(2), s 38(1)-(3), s 39, s 40(2), s 41(a)-(d), s 41(3), s 46.
Coroners Act 2003 (SA).
Coroners Amendment Act 2002 (NT) cl 6.
Inquest into the death of Kumanjayi Walker (Ruling No 5) [2022] NTLC 024
Attorney General v Borland [2007] NSWCA 201 , Construction Forestry Mining & Energy Union of Australia v Inspector Alfred (2004) 135 FCR 459; [2004] FCAFC 36, Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543, Decker v State Coroner of New South Wales (1999) 46 NSWLR 415, Deputy Coroner of SA v Bell [2020] SASC 59, Domaszewicz v State Coroner (2004) 11 VR 237, Doomadgee v Clements (2006) 2 Qd R 352, Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5 , Naismith v McGovern [1953] HCA 59; (1953) 90 CLR 336, Police Service Board v Morris [1985] HCA 9; 156 CLR 397, Priest v West (2012) 40 VR 521, Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328, R v IBAC (2016) 256 CLR 459, Refrigerated Express Lines (Australasia) v Australian Meat and Livestock Corporation (1979) 42 FLR 204, Refrigerated Express Lines (Australasia) v Australian Meat and Livestock Corporation (supra), Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129, Sorby v Commonwealth [1983] HCA 10; 152 CLR 281, Trade Practices Commission v Abbco Iceworks Pty Limited [1994] FCA 1279; (1994) 52 FCR 96, X v Deputy State Coroner for New South Wales (2001) 5 NSWLR 312, referred to.
REPRESENTATION:
Counsel:
First Plaintiff:  T Boyle with K McNally
Second Plaintiff:  B Doyle KC with L Officer
Defendant:P Coleridge with B Wild
First Intervenor:  T Game SC with K Edwards
Second Intervenor:  E Nekvapil SC with B Wild
Third Intervenor:  Dr I Freckelton AO KC with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NTSC 92
Decision Date: 12 December 2022

CaseChat Overview and Summary

In Bauwens v The Territory Coroner, the plaintiffs sought declarations that the common law penalty privilege is not abrogated by the Coroners Act 1993 (NT) and that, notwithstanding section 38 of the Act, witnesses are entitled to refuse to answer questions that would subject them to a penalty and that the Coroner cannot compel them to do so. The case concerned the extent to which penalty privilege applies in inquests under the Act and whether it has been abrogated by statute. The plaintiffs argued that penalty privilege is available in inquests except to the extent expressly or impliedly abrogated by the Act, and that section 38, which addresses self-incrimination privilege, does not abrogate penalty privilege. The court considered the statutory construction of the Act and whether penalty privilege has been impliedly abrogated.

The legal issues before the court were whether penalty privilege applies in inquests under the Act except to the extent abrogated by the Act, and if so, whether it has been abrogated by section 38. The plaintiffs argued that penalty privilege applies unless expressly or impliedly abrogated, and that section 38 does not affect penalty privilege. The court examined the statutory language and the nature of inquests under the Act to determine the extent of penalty privilege. The plaintiffs contended that inquests are curial proceedings, and therefore, penalty privilege should apply unless explicitly abrogated. They also argued that section 38 pertains specifically to self-incrimination privilege and does not address penalty privilege. The court considered these arguments in the context of statutory interpretation and the common law principles relevant to inquests.

The court found that penalty privilege is available in inquests under the Act, but it may be limited by statute. The court held that section 38 of the Act does not expressly or impliedly abrogate penalty privilege, and therefore, witnesses in inquests retain the right to refuse to answer questions that would subject them to a penalty. The court rejected the plaintiffs' argument that section 38 pertains solely to self-incrimination privilege and concluded that the statutory language does not provide clear evidence of an intent to abrogate penalty privilege. The court's reasoning was based on the principle that statutory provisions must be interpreted in their context and that any limitation on common law rights must be clearly expressed. The court's decision affirmed the availability of penalty privilege in inquests under the Act and rejected the contention that it had been abrogated by section 38.

The court refused the plaintiffs' application for the declarations sought, finding that penalty privilege is available in inquests under the Act except to the extent expressly or impliedly abrogated by statute. The court held that section 38 of the Act does not abrogate penalty privilege and that witnesses in inquests retain the right to refuse to answer questions that would subject them to a penalty. The court's decision clarifies the scope of penalty privilege in inquests under the Coroners Act 1993 (NT) and affirms the right of witnesses to claim the privilege in appropriate circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Each of the proposed interveners has been granted leave to appear at the inquest as a person or entity with a ‘sufficient interest’ in those proceedings under s 40(2) of the Act, and neither the plaintiff nor the Attorney-General has opposed their intervention. In my view, each of them has a sufficient interest in the outcome of this proceeding and it was appropriate for each of them to be granted leave to intervene and I so ordered.Proposed amendments to the declarations sought Constable Rolfe seeks to amend the terms of the second declaration as follows:Notwithstanding s 38 of the Coroners Act 1993 (NT), in respect of any questions the answers to which would tend to subject or expose him to a penalty (with the meaning of the privilege against exposure to penalty): (a) Constable Zachary Rolfe is entitled to refuse to answer the question(s); and (b) the Coroner cannot direct or compel him to answer the question(s). The plaintiff consented to that amendment and neither the Attorney-General nor the other interveners objected. The issues In this Court, the plaintiffs’ application for declaratory relief raises two substantive issues:(a)the legal status of the penalty privilege: whether it would apply in an inquest under the Act except to the extent that it is abrogated by the Act; or whether it would only apply to the extent conferred by s 38 of the Act;(b)on the assumption that penalty privilege is a ‘substantive common law rule’ that would apply unless and until abrogated by statute, whether the privilege has, like the privilege against self-incrimination, been abrogated (or partly abrogated) by s 38 of the Act. (Alternatively, if the privilege applies only to the extent conferred by the Act, whether it has been conferred in a qualified fashion by s 38). All parties (using that as a term of convenience) concede that the extent to which penalty privilege is available to be claimed by a witness in an inquest, and the consequences of such a claim, are questions of statutory construction of the Act.The plaintiffs’ contentions Written submissions by the plaintiff and Constable Rolfe differ somewhat in structure and emphasis but, in essence, the plaintiffs’ contentions are threefold.(1)Penalty privilege is capable of being relied upon in a proceeding such as an inquest save to the extent that it has been expressly abrogated or where the privilege is abrogated by necessary intendment.(2)Section 38 is concerned with self-incrimination privilege and not penalty privilege. (3)It cannot be concluded that penalty privilege is impliedly abrogated by the provisions of the Act including s 38. For the first contention, the plaintiffs begin with the proposition that the inquest is a curial proceeding, relying on the following: (a)Section 6(2) of the Act provides that a Coroner has “jurisdiction and power conferred by the common law”. (b)Under the common law the Coroners Court was a court of record.[2] (c)Section 42 of the Act provides that “a coroner must conduct an inquest in open court”. (d)Section 4(3), provides that a “Local Court Judge” is an entitling status that renders someone a Coroner under the Act and by s 4(2), only a Local Court Judge may be appointed “the Territory Coroner” by the Administrator. (e)Under s 7 of the Act, the immunity conferred on a Coroner is co-extensive with that of a Local Court Judge.