Cahill, R.J.

[1989] FCA 536

Re: APPLICANT
And: RONALD J. CAHILL and THE COMMISSIONER OF THE AUSTRALIAN
FEDERAL POLICE
No. ACTG53 of 1989
FED No. 536
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Judicial Review - Coroner's Court, Australian Capital Territory - Order forbidding publication of name of witness - Decision by Coroner to lift order - Whether any error of law by Coroner in so deciding - Relevant considerations - Coroner's discretion - Nature of test under s.83(1) Evidence Act 1971 (A.C.T.)

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 12

Federal Court Act, s.50

Evidence Act 1971 (A.C.T.), ss.82, 83

Australian Capital Territory Evidence (Temporary Provisions) Act 1971 (Cth), s.3

Coroners Act 1956 (A.C.T.), ss.5, 11, 22, 23, 25, 26, 27, 28, 33

HEARING

CANBERRA

#DATE 9:9:1989

Counsel for the applicant : Mr K. Crispin, Q.C.
Solicitors for the applicant : Macphillamy & Co.

Counsel for the second respondent : Mr B. Maguire, Q.C.

with Mr I. Nash

Solicitor for the second respondent : Australian Government

Solicitor

ORDER

The application be dismissed.

The order made by the Court under s.50 of the Federal Court of Australia Act 1976 on 8 September 1989 forbidding the publication of the name of the applicant be varied so as to forbid the publication of the name of the applicant until such time as there is no longer in force an order by the Coroner under sub-s.83(1) of the Evidence Act 1971 (A.C.T.) forbidding publication of the applicant's name.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of a decision made by Mr R.J. Cahill, Chief Magistrate of the Australian Capital Territory, sitting as the Coroner and holding an inquest under the Coroners Act 1956 (A.C.T.) into the manner and cause of the death of Colin Stanley Winchester. The decision in respect of which the order of review is sought is a decision made on 7 September 1989 that, as from 10 a.m. on 11 September 1989, an order forbidding the publication of the applicant's name should cease to have effect. The order forbidding such publication was made on 1 May 1989 under s.83(1) of the Evidence Act 1971 (A.C.T.), a provision in force in the Australian Capital Territory by virtue of s.3 of the Australian Capital Territory Evidence (Temporary Provisions) Act 1971 (Cth).

1. The application filed in this Court named the Coroner as the sole respondent. The Commissioner of the Australian Federal Police applied, pursuant to s.12 of the Judicial Review Act to be made a party to the application. Counsel submitted that as the Commissioner was a person who had been given leave to be represented at the inquest and was the person on whose application the decision the subject of the application to this Court had been made, he was a "person interested" in the decision within the meaning of that expression in s.12(1). Over the opposition of the applicant, I granted the application unconditionally.

2. The Coroners Act establishes a court known as the Coroner's Court (s.5(1)). It is a Court of Record (s.5(3)). A person who is a magistrate is a Coroner for the Australian Capital Territory (s.5A). The Coroner is, subject to the Act, to hold an inquest into the manner and cause of death of a person who dies under suspicious or unusual circumstances (s.11(1)(a)). The inquest is to be held in the Coroner's Court (s.22(1)) and is to be held without a jury (s.23). At the inquest, the Coroner is to make full inquiry into the cause of the death of the deceased person and to examine on oath all persons who tender evidence relevant to the inquest or who, in the opinion of the Coroner, are able to give evidence relevant to the inquest (s.25). The Coroner may issue his summons requiring the attendance of a person who, in the opinion of the Coroner, is able to give evidence relevant to the inquest (s.26(1)). The Coroner may grant leave to a person who has been summoned to give evidence at an inquest or who, in the opinion of the Coroner, has a sufficient interest in the subject matter of the inquest to appear in person at the inquest or to be represented by counsel or solicitor and to examine and cross-examine witnesses on matters relevant to the inquest (s.27). The Coroner is not to be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law (s.28). At the conclusion of an inquest, the Coroner is to record his findings as to the identity of the deceased person, when and where he came to his death and the manner and cause of his death and, if he is of opinion that the evidence given at an inquest has established a prima facie case against any person for an indictable offence, the Coroner is to proceed in the same manner as the Magistrates Court proceeds when it is satisfied that a prima facie case has been established against an accused person for an indictable offence (s.33).

3. Section 83(1) of the Evidence Act provides:
   

"(1.) Where it appears to a court that -

(a) the publication of evidence, given or intended to be given, in a proceeding before that court, is likely to prejudice the administration of justice; or

(b) in the interests of the administration of justice, it is desirable that the name of a party to, or a witness, or intended witness, in such a proceeding be not published, the court may, at any time during or after the hearing of the proceeding, make an order -

(c) forbidding the publication of the evidence or a specified part of the evidence, or of a report of the evidence, either absolutely or subject to such conditions as the court specifies or for such period as is specified; or

(d) forbidding the publication of the name of such a party or witness."

By virtue of s.82 of that Act, s.83 applies to a proceeding in the Supreme Court of the Australian Capital Territory and in the Magistrates Court and to an inquest under the Coroners Act.

1. The inquest into the death of Mr Winchester has been conducted in public - and properly so - notwithstanding the absence of an express provision in the Coroners Act to that effect. It appears that, prior to the commencement of the inquest, a summons was issued by the Coroner under s.26(1) of the Coroners Act requiring the attendance of the applicant to give evidence. It further appears that, at the opening of the inquest on 1 May 1989 and prior to any evidence being adduced before the Coroner, the applicant sought and was granted leave to be represented at the inquest by counsel or solicitor. On the application of his solicitor, the order forbidding the publication of his name was made. The Coroner subsequently set out the circumstances in which the order was made in the following terms:
   

"Well, it was a very short matter and the application was made simply on the basis that the man had been named in investigations, he wished to be represented and, at this stage, it would be a huge disadvantage in fairness to him, the fact he was represented being brought forward as an indication of his guilt perhaps. I mean, a person in an inquest such as this is in a pretty invidious position because the very fact someone comes forward and wishes to be represented at an inquest at the outset may well, in itself, be seen by some, quite wrongly, of course, as something prejudicial to him, and that was the reasoning behind the order and that was mentioned, in very brief terms. And, of course, at that stage, I had no evidence - of course I had some knowledge of the evidence on the basic briefings I had been given, but I certainly had no detailed evidence before me in relation to (the applicant) at that time."

1. It further appears that a great deal of evidence has been given at the inquest concerning the applicant and that, during the course of that evidence, the applicant has not been referred to by a pseudonym but by his correct name. There has been no restriction on the publication outside the Court of the whole of that evidence, the only prohibition being as to his name. Thus, those members of the public who have attended the inquest, including journalists employed by the news media, are aware of the applicant's name and of the evidence concerning him.

2. On 29 August 1989, application was made to the Coroner by counsel on behalf of the Commissioner of the Australian Federal Police that the order made on 1 May 1989 should cease to have effect. After hearing argument, the Coroner decided that at that stage, the order should continue, expressing the view that "the most appropriate and fair course in all of the circumstances, on balance, is to continue the order until such time as the evidence against (the applicant) has been completed". He added: "At that particular time I will have a much better idea and a much more practical idea of the state of the evidence, which to some extent still remains to be tested and tried".

3. The matter was again adverted to on 7 September 1989 when the Coroner made the decision the subject of the present application.

4. When the hearing of the application commenced in this Court, counsel for the applicant had no inhibitions about referring to the applicant by his correct name. Being concerned that this course might result in the applicant's name being widely published before a decision on the application was made, the Court made an order under s.50 of the Federal Court of Australia Act 1976 (Cth) forbidding the publication of the applicant's name until further order.

5. The grounds set out in s.5 of the Judicial Review Act upon which the applicant relied are those set out in par.1(e) read with pars (2)(a) and (2)(b), par.(1)(f), par.(1)(h) and par.(1)(j). It is unnecessary to set out the text of those paragraphs. In essence the applicant relied upon three matters. It was submitted on his behalf -
   

(a) that the Coroner had failed to proceed on the basis of the presumption of innocence of the applicant, this being reflected in the circumstance that he had permitted orders for the suppression of the publication of the identity of other persons to remain in force while treating the applicant differently;

(b) that the Coroner had erred in law in deciding that an order under s.83(1) of the Evidence Act could only be granted in exceptional circumstances; and

(c) that the Coroner had wrongly taken into account as a relevant consideration the fact that publication of the applicant's name might cause someone to come forward with information.

In support of these submissions, counsel for the applicant referred to G. v. The Queen, (1984) 35 SASR 349 at pp 350-1.

1. Counsel for the Commissioner opposed the application and submitted that the Coroner had not fallen into error in the manner in which he had approached the question and that the discretion vested in him under s.83(1) of the Evidence Act had been properly exercised. He referred to Mirror Newspapers Ltd. v. Waller (1985) 1 NSWLR 1 and John Fairfax & Sons Ltd v. Police Tribunal of New South Wales (1986) 5 NSWLR 465 at pp 476, 481.

2. There can be no doubt that, as a general principle, the proceedings of a coronial inquiry should be heard in public, particularly where, as in this case, the inquest is being held to assist the police in their investigations. Similarly, the public interest requires that there be publicity in the form of fair and accurate reports of the proceedings. It is against that background that the provisions in s.83(1) of the Evidence Act must be considered.

3. The only criterion which that sub-section prescribes as being both necessary and sufficient to sustain an order suppressing publication of matter referred to in the sub-section is the effect of publication upon the administration of justice. The publication of evidence may be suppressed only where publication "is likely to prejudice the administration of justice". The name of a party to, or a witness, or intended witness in, the proceeding may be suppressed only if to do so is "in the interests of the administration of justice". That is the test which must be kept clearly in mind. It does not, in my view, assist in resolving the issue raised by an application for an order under that sub-section to discuss the matter in terms of asking whether "exceptional" or "special" circumstances have been established. To substitute such words for the words of the sub-section may well result in the decision-maker, if only subconsciously, substituting a different test for that prescribed by the legislation.

4. It is true that in the present case the Coroner, in the course of discussing the issue before him and prior to hearing submissions on behalf of the applicant as to why the suppression order should not be disturbed, expressed himself in the following terms:
   

".... I believe (the applicant) has probably reached the position where, had this been a normal committal proceeding, he would be very close to the stage where a decision would be made about a prima facie case or not. A person in a situation such as that in the normal criminal courts, would be very unlikely except in exceptional circumstances to be afforded the protection of a suppression order."

1. Having read and re-read the transcript of the proceedings before the Coroner on 7 September 1989, I am not satisfied that, in considering the matter, he applied a criterion other than that prescribed by s.83(1). Considering the whole of what was said, it is I think tolerably plain that the Coroner was not satisfied, having regard to the material that had by that stage of the inquest been placed before him, that the proper administration of justice required that the publication of the applicant's name be forbidden for a further period.

2. I am also unable to accept that the Coroner proceeded otherwise than on the basis of the presumption of innocence. It was clearly relevant to the resolution of the issue before him to consider the evidence albeit circumstantial, which had been presented to him concerning the possible connection of the applicant with the crime. I do not read what he said as involving any presumption that the applicant was guilty of any offence. In its context, the references to the evidence concerning the applicant were made in order to draw a distinction between the situation which existed when the order was made on 1 May 1989 and that which existed on 7 September 1989.

3. It is not for this Court to substitute its opinion for that of the Coroner. The role of the Court is a much more limited one. It is to determine whether any of the grounds set out in s.5 of the Judicial Review Act have been established and, if so, whether, in the exercise of its discretion, the applicant should be granted the relief sought.

4. The applicant has not satisfied me that any of the grounds set out in s.5 of the Judicial Review Act have been established. In particular, I am not satisfied that the decision involved an error of law or that in making the decision the Coroner took into account an irrelevant consideration or failed to take into account a relevant consideration. The application is, therefore, dismissed.

5. I have already referred to the order made under s.50 of the Federal Court of Australia Act forbidding the publication until further order of the name of the applicant. I now vary that order forbidding the publication of the name of the applicant until such time as there is no longer in force an order by the Coroner under s.83(1) of the Evidence Act forbidding publication of the applicant's name.

6. It is appropriate, in all the circumstances, that the Court make no order as to costs.