Commissioner of NSW Police v Deputy State Coroner for NSW

[2021] NSWSC 398

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Commissioner of NSW Police v Deputy State Coroner for NSW [2021] NSWSC 398

Hearing dates:

6 April 2021

Date of orders:

20 April 2021

Decision date:

20 April 2021

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Summons dismissed.

Catchwords:

CIVIL LAW – judicial review of decision of Coroner not to suppress details of Police Safe Driving Policy – jurisdictional error – urgent application for review – inquest listed for hearing – police pursuits – nature of coronial proceedings – therapeutic jurisprudence – open justice – public safety – whether error of law on the face of the record – whether Coroner applied wrong legal test – straw man argument – legal unreasonableness – whether coroner acted irrationally or illogically – implied powers – incidental powers –affidavits of Deputy Commissioners – whether expert evidence – possibly ambitious submission – Expert Code of Conduct not adopted – where parts of policy disclosed at press conference – where press conference on NSW Police Facebook page – whether Coroner disregarded gravity of consequences – inconceivable – whether reasons adequate – Coroner’s reasoning sound

Legislation Cited:

Coroners Act 2009 (NSW), ss 65, 73, 74

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 8, 10

Cases Cited:

AB v The Queen (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 560; [2002] HCA 49

Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4

Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88; [1982] HCA 2

HT v The Queen [2019] HCA 40; 93 ALJR 1307

John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

Minister for Immigration and Broder Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2014) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

O’Shane v Burwood Local Court (NSW) [2007] NSWSC 1300; (2007) 178 A Crim R 392

R v Qaumi & Ors(No 9) [2016] NSWSC 171

State of New South Wales v Kamm [2016] NSWSC 1

Texts Cited:

JG Starke QC, ‘The right of freedom of public access to court hearings’ (1989) 63 Australian Law Journal 155

Category:

Principal judgment

Parties:

Commissioner of NSW Police (Plaintiff)
Deputy State Coroner for NSW (Defendant)
Attorney-General of NSW (Amicus curiae)

Representation:

Counsel:
G Kennett SC and A Poukchanski (Plaintiff)
D Kell SC and J Davidson (Amicus curiae)

Solicitors:
HWL Ebsworth (Plaintiff)
Crown Solicitor’s Office (Defendant)
Crown Solicitor’s Office (Amicus curiae)

File Number(s):

2021/80235

Publication restriction:

Non-publication order applies over certain parts of the judgment.

 Decision under review 

Court or tribunal:

Coroner’s Court

Date of Decision:

10 March 2021

Before:

Deputy State Coroner Grahame

File Number(s):

2016/290240; 2018/297261

Judgment

1. This is a summons seeking judicial review brought by the New South Wales Commissioner of Police ("the Commissioner") against various decisions made by a Deputy State Coroner. The summons should be dismissed. These are my reasons for that conclusion.

Background, urgency and complications

2. The application concerns the refusal of Deputy State Coroner Grahame (“the Coroner”) to make non-publication orders, "suppression" orders (an expression to which I will return), and other “protective” orders relating to the whole or parts of the New South Wales Police Force’s Safe Driving Policy (“the Policy”). The orders, or the failure to make orders, arose in coronial proceedings [1] investigating the deaths of two men who died in accidents that happened during car chases involving officers of the New South Wales Police Force. The manner in which the applications were conducted in the Coroner's Court, and the way they were resolved, along with the fact that the relevant policies have changed over time, creates a deal of complication in the resolution of the Commissioner’s summons.

   1. See Coroners Act 2009 (NSW), s 46.

3. There is urgency surrounding the disposal of the Commissioner’s application. One of the inquests has already been vacated, it seems (although I am not completely sure) because of the controversy surrounding the issue of whether the Policy should be protected by orders along the lines of those sought by the Commissioner. More urgently, one of the matters is listed for a five-day inquest commencing on 26 April 2021 in Lismore. The parties indicated that the inquest date may have to be vacated if a decision on the Commissioner’s summons is not made before that date. By their nature, coronial proceedings are straining and emotional occasions. The relatives of the two dead men, and the police officers involved in the incidents, as well as many other people affected by the tragedies, are entitled to have the inquests proceed as soon as possible. It is more than an issue of case management. There is an aspect of what might be called therapeutic jurisprudence in the important jurisdiction conveyed on the State’s Coroners. Delays should be minimised.

4. For that reason, it is necessary to cut through the complications surrounding the summons and attempt to deal with the fundamental complaints made by the Commissioner about the approach taken by the Coroner. However, I will set out in very brief form the nature of some of the complications to which I have referred.

5. The first complication arises from the fact that there are three versions of the Policy the subject of the summons.

6. The first version of the Policy is numbered version 8.2 and was the policy in place from 2016 to 2017 and at the time of death of Michael Henry Farrell in September 2016. As I mentioned, the inquest into Mr Farrell's death was vacated, it seems, as a result of the issue surrounding whether this version of the Policy and subsequent versions could be published or otherwise disclosed to the public. This version of the Policy was marked on the hearing of the summons as Confidential MFI 1 and was also attached to some of the affidavit material supplied to the Coroner on the Commissioner’s application for various orders.

7. The second version is version 8.3. That policy was in effect at the time of the death of Tyrone Raymond Adams in September 2018. The inquest into Mr Adams’ death is listed in Lismore at the end of April. Version 8.3 of the Policy was marked as Confidential MFI 2 on the hearing before me.

8. The third version of the Policy is version 9.2, marked as Confidential MFI 3. Version 9.2 is the current version of the Policy.

9. Inevitably, one issue that will arise at each inquest is whether the police involved in the pursuit complied with the version of the Policy that was in effect at the time of the death. Accordingly, versions 8.2 and 8.3 will be important documents at the respective inquests. Another obvious issue will be whether the Coroner should make any recommendations to revise or amend the Policy pursuant to s 82 of the Coroners Act 2009 (NSW). Whether such recommendations are appropriate will turn on changes to the Policy which have resulted in version 9.2 (Confidential MFI 3). Accordingly, that document will also be important evidence at each inquest.

10. Each version of the Policy is separated into some ten parts and, within those parts, there are many clauses and subclauses. Some of the clauses and sub-clauses are numbered; others are organised into a series of “dot points”. This gives rise to a further complication; different arguments were made, and different issues arose, in respect of various subclauses. In line with this, the five grounds raised in the Commissioner’s summons are directed to different parts of the policies. Again, different submissions were advanced depending on the different protocols and procedures within those clauses and subclauses.

11. In order to attempt to make the submissions comprehensible and to explain her Honour’s reasons for her decision, the Coroner and Counsel assisting her Honour, separated the various parts of the policies into subject areas. These were described as “categories” or “categories of information”. These categories were adopted in the summons and in the submissions before this Court. There were 10 such categories:

• Category 1 – Vehicle categories.

• Category 2 – Information relating to the matters informing police decisions under the Policy.

• Category 3 – Urgent driving.

• Category 4 – Approval/authorisation required for re-initiation.

• Category 5 – More than two vehicles involved in pursuit.

• Category 6 – Two-second gap.

• Category 7 – Requirement of police to provide certain information.

• Category 8 – Termination.

• Category 9 – Debrief form.

• Category 10 – Non-police officer in vehicle.

12. The Attorney-General of NSW appeared as amicus curiae and was ably represented by the Crown Advocate, Mr Kell SC and Ms Davidson of counsel. They took a neutral position with respect to the ultimate resolution of the matter but provided a great deal of assistance both in terms of drawing my attention to aspects of the law in relation to which less focus was placed upon by the Commissioner and in referring to aspects of the Coroner's judgments which may give a different complexion to the complaints made on behalf of the Commissioner (I should also say here that counsel for the Commissioner, while putting the Commissioner’s case forcefully and thoroughly, presented the arguments with admirable fairness and dispassion).

13. Part of what the Attorney-General did to assist the Court was to colour code the three versions of the Policy to demonstrate those parts over which the Coroner made non-publication orders and those parts over which the Coroner declined to make such orders. Again, whilst that process was extremely helpful in allowing me to understand the approach that her Honour took, it is unnecessary, and impossible in the time available, to descend into the detail of the matter subclause by subclause or dot point by dot point. These documents show, in graphic form, two things that are clear from the Coroner’s judgments and orders: first, that the Coroner recognised that different considerations applied to various parts of the policies; and, second, that her Honour was largely not persuaded that it was appropriate to make the protective orders sought by the Commissioner. That is, for the most part, her Honour declined to make the orders for which the Commissioner applied. The result of this is that, if her Honour’s decision stands, most of the Policy will become publicly known through reporting of the evidence to be adduced at the two inquests.

14. To add to an already confusing state of affairs, in relation to the proceedings at the inquest into the death of Mr Adams, the Commissioner’s application also encompassed a number of pieces of evidence in which the details and substance of the Policy were disclosed. The Commissioner sought similar non-publication, suppression and other protective orders in relation to that material. In turn, the Coroner and counsel assisting created a separate series of categories into which that evidence fell. Those categories are different to the ten categories relating to the policies themselves. It is clear that the Commissioner’s application is directed to the non-disclosure and/or non-publication of the Policy itself. However, any orders this Court makes in relation to the summons will have an impact on the disclosure and publication of the evidence that provides details of the Policy.

15. The summons brought by the Commissioner to this Court raises five grounds of appeal, alphabetised as grounds A, B, C, D and E. Within those grounds of appeal, as formulated in the summons, the author indicated the categories of material to which each ground relates. In so far as possible, I will not go into the details of those categories. The reason is simple. If I did so there is no practical way in which this judgment and any orders that I make can be accomplished or finalised without jeopardising the hearing date for the inquest into the death of Mr Adams. Even so, I have considered the different categories of material and the way in which each is relevant to the errors of law asserted in the summons and the assertion that the Coroner fell into jurisdictional error.

16. One matter which simplifies the process is that, while the Coroner delivered two separate judgments in relation to the applications as they related to the separate inquests of Mr Farrell (“the Farrell Judgment”) and Mr Adams (“the Adams Judgment”), the first approximately 130 paragraphs of those judgments are essentially the same. Accordingly, the parties addressed their submissions almost exclusively to the Farrell Judgment. The remaining paragraphs of the Adams Judgment are largely concerned with those separate matters of evidence in which parts of the Policy were disclosed and to which I referred in [14] above. As I see it, it is unnecessary to go into the minutiae of those separate aspects of evidence. I reiterate that the Commissioner's main concern is that the Policy, or substantial parts of the Policy, should not be publicly disclosed or information about it disseminated.

17. At the heart of this case, and the basis of the Commissioner’s application to the Coroner, is a concern that disclosure of the Policy (versions 8.2, 8.3 and 9.2), and more particularly the widespread dissemination of the Policy, may result in a danger to the public in that fugitives and suspects fleeing from the police in motor vehicles might adapt their behaviour by reference to their acquired knowledge of police protocols relevant to the pursuit of speeding vehicles. One of the complaints made by the Commissioner is that the Coroner applied the wrong legal test in making an assessment of that risk and in making decisions about the safety or “personal security” of the public. I will consider that complaint when I deal with Ground B.

The Coroner’s powers, statutory and implied, and the kinds of protective orders available

18. It is appropriate to set out the powers residing in the Coroner by virtue of the Coroners Act. The Coroner’s Court is a statutory court, the jurisdiction and powers of which are encompassed in, and governed by, the provisions of the Coroners Act. The Commissioner submitted that the specific powers provided by the Coroners Act, the scheme of the legislation and the nature of the jurisdiction also gave rise to certain implied or incidental powers, including the power to make a “suppression order”, and that the Coroner erred in failing to recognise those powers or to consider exercising them. I am prepared to accept the existence of those incidental powers, but it is unnecessary for the purpose of this judgment to determine the extent, if any, of such implied jurisdiction.

19. The term “suppression order” is an expression understood both at common law and under the Courts Suppression and Non-publication Orders Act 2010 (NSW) (“the CSNPO Act”). The CNSPO Act applies to “courts” as defined in s 3. The definition does not include the Coroner’s Court and the parties agreed that the Coroner’s Court has not been “prescribed by the regulations as a court for the purpose of the Act”.

20. The CSNPO Act defines “suppression order” in s 3 as “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”. By contrast a “non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”. [2] “Publish” is defined in s 3 as follows:

publish means disseminate or provide access to the public or a section of the public by any means, including by—

(a) publication in a book, newspaper, magazine or other written publication, or

(b) broadcast by radio or television, or

(c) public exhibition, or

(d) broadcast or publication by means of the Internet.

2. Courts Suppression and Non-publication Orders Act 2010, s 3.

21. The CSNPO Act allows for two kinds of orders. A non-publication order is directed to mass publication while a suppression order is calculated to prohibit disclosure of information by any means. Section 8 provides the grounds upon which such orders might be made:

8   Grounds for making an order

(1)  A court may make a suppression order or non-publication order on one or more of the following grounds—

(a)  the order is necessary to prevent prejudice to the proper    administration of justice,

(b)  the order is necessary to prevent prejudice to the interests of the    Commonwealth or a State or Territory in relation to national or    international security,

(c)  the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes    Act 1900),

(e)  it is otherwise necessary in the public interest for the order to be    made and that public interest significantly outweighs the public interest    in open justice.

(2)  A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3)  Despite subsection (1)(d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

22. Section 6 provides:

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

23. By virtue of the definition of “court” in s 3 of the CSNPO Act, the Coroner does not have power to make orders under the Act. Nor is she bound by the terms of that Act in making any orders calculated to restrict the dissemination or publication of information or evidence obtained or adduced in coronial proceedings or inquests. The Coroners Act provides specific powers to limit the publication and disclosure of information and evidence. Two distinctions with the provisions of the CSNPO Act ought to be noted. First, the Coroners Act provides no specific power to make a “suppression” order as that term is defined in the CSNPO Act. Secondly, each of the grounds in s 8 upon which orders can be made under the CSNPO Act imports the common law notion of “necessity”,[3] whereas the Coroners Act does not, on its terms, require orders to be “necessary”. The CoronersAct does however make clear that there is a “principle that coronial proceedings should generally be open to the public”. [4]

    3. See, for example, John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 at [40]–[45] (Spigelman CJ); O’Shane v Burwood Local Court (NSW) [2007] NSWSC 1300; (2007) 178 A Crim R 392 at [34] (McLellan CJ at CL).

    4. Coroners Act 2009 (NSW), ss 65(3)(a) and 74(2)(a).

24. There are two separate provisions enabling the Coroner to make orders whereby the information is not disclosed to the public and/or that the proceedings be held in camera and the evidence not be published.

25. Section 74 of the Coroners Act provides for closure of the Court and non-publication orders:

74 Powers of Coroner to clear court and prevent publication of evidence or submissions

(1) A coroner in coronial proceedings may, if of the opinion that it would be in the public interest to do so, order--

(a) any or all persons (including witnesses in the proceedings) to go    and remain outside the room or building in which the proceedings are    being heard, or

(b) that any evidence given in the proceedings not be published, or

(c) that any submissions made in the proceedings concerning whether    a known person may have committed an indictable offence not be    published.

(2) For the purposes of subsection (1), the coroner may, in forming an opinion as to the public interest, have regard (without limitation) to the following matters--

(a) the principle that coronial proceedings should generally be open to    the public,

(b) in the case of an order that is proposed to be made in relation to a    witness in the proceedings--the likelihood that the evidence of the    witness might be influenced by other evidence given in the    proceedings if the witness is present when that other evidence is    given,

(c) national security,

(d) the personal security of the public or any person.

(3) A person must not contravene an order made under this section.

Maximum penalty--10 penalty units or imprisonment for 6 months (in the case of an individual) or 50 penalty units (in any other case).

26. Section 73 of the Coroners Act defines “published”:

73 Meaning of "published"

For the purposes of this Part, matter is

"published" only if it is--

(a) inserted in any newspaper or any other periodical publication, or

(b) publicly exhibited, or

(c) broadcast by radio or by television, or

(d) published by means of the Internet.

27. Section 65 of the Coroners Act relates to access to the coroner’s file:

65 Records of evidence

(1) The coroner in coronial proceedings is to ensure that the evidence of every witness in the proceedings is recorded.

(2) Subject to this section, a coroner or assistant coroner is to supply a person with a copy of a coroner's file (or a part of that file) at the request of the person if--

(a) the coroner or assistant coroner is satisfied that it is appropriate for    the person to be granted access to the file (or a part of the file), and

(b) the person pays the fee that is payable in the Local Court for the    provision of a copy of a document (other than a copy of a judgment or    order or the reasons for a judgment or order) or such other fee as may    be prescribed by (or calculated in accordance with) the regulations.

(3) In determining whether it is appropriate to grant a person access to a coroner's file (or a part of the file), the coroner or assistant coroner making the determination is to have regard to the following matters--

(a) the principle that coronial proceedings should generally be open to    the public,

(b) if the coroner's file relates to a deceased person--the impact on the    relatives of the deceased person of allowing access,

(c) the connection that the person requesting access has to the    proceedings concerned,

(d) the reasons why access is being sought,

(e) any other matter that the coroner or assistant coroner considers    relevant.

(4) A coroner who conducts coronial proceedings may, by notation on the coroner's file on the matter, direct that a copy of the whole or a particular part of the file is not to be supplied under this section.

(5) A direction by a coroner under subsection (4) must include a statement of the coroner's reasons for the direction.

(6) A copy of a coroner's file (or of any part of the file) is not to be supplied under this section in contravention of--

(a) a direction by a coroner under subsection (4), or

(b) an order made under section 74.

(7) In this section--

“coroner's file" means the documents (including the depositions of witnesses, transcripts and written findings) that form part of the file kept by a coroner in respect of a death, suspected death, fire or explosion.

Interim suppression orders

28. At the commencement of the hearing before me, the Commissioner sought certain interim orders. These were calculated to protect the same interests that are the subject of the proceedings.

29. The first order sought was for the closure of the Court. There is an inherent power in this Court to make such an order. However, an order closing the Court represents a substantial interference to the operation of the principle of open justice. It is a critical aspect of the exercise of judicial power in a democratic society that the courts of justice be administered openly and that members of the public and interested parties be permitted to come and go from the public gallery, and observe the proceedings, without interference or restriction: see, for example, Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [20]-[21], John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [18]–[19] and R v Qaumi & Ors (No 9) [2016] NSWSC 171 at [19]-[37]. See also, the observations made by Deane J when ASIO officers asked people sitting in the public gallery to identify themselves: JG Starke QC, ‘The right of freedom of public access to court hearings’ (1989) 63 Australian Law Journal 155-7. The power to close a court will only be exercised when it is truly necessary to protect some interest that cannot be protected by some other, less intrusive measure.

30. I was unable to conclude that it was necessary to close the Court for the whole of the hearing of the case. I declined to make that order but indicated that if any part of the oral submissions would disclose material that was subject of the orders not made by the Coroner, I would reconsider closing the Court for those particular submissions. The hearing proceeded and both counsel were able to make their submissions by reference to the evidence and written submissions without openly disclosing any information that would have the effect of interfering with the interests that the Commissioner is seeking to protect by bringing this summons.

31. The second interim order sought was for the suppression of such information. Under s 10 of the CSNPO Act an interim order can be “made without determining the merits of the application”:

10 Interim orders

(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.

32. Pursuant to s 10 of the CSNPO Act, I made the following orders:

“1. Until further order and on an interim basis pursuant to s 10 of the Court Suppression and Non-publication Act 2010 (NSW) (CSNPO Act):

a. the information the subject of non-publication orders made or proposed to be made on 10 March 2021 in relation to Coroners Court proceedings 2016/290240 and 2018/297261 (the Non-Publication Information), the Contested Farrell Information and the Contested Adams Information (as defined in the Plaintiff's Summons filed 22 March 2021); and

b. any transcript of the hearing of the Plaintiff's application on 6 April 2021 before Hamill J that refers to the Non-Publication Information, the Contested Farrell Information and the Contested Adams Information,

be suppressed such that it not be disclosed beyond Hamill J, the Plaintiff, the Defendant, the Attorney General for New South Wales and those assisting them in relation to the proceedings (including their legal representatives).”

33. Any further application will be heard and determined immediately after delivering this judgment, in accordance with sub-s 10(2).

The proceedings before Deputy State Coroner Grahame

34. The Commissioner notified those assisting the Coroner of his intention to apply for “protective orders” in relation to the contents of the Policy at some stage in the first half of 2020. There was then correspondence between those assisting the Coroner and the lawyers representing the police. In response to a request from the Coroner, the Commissioner provided proposed short minutes of order. At that relatively early stage both parties were represented by the NSW Crown Solicitor’s Office (“CSO”), albeit by different teams within the CSO.

35. On 26 June 2020 the Commissioner’s solicitor indicated that no claim for public interest immunity would be made if the Coroner was inclined to make the protective orders sought by the Commissioner. It was said that the proposed protective orders were “the least restrictive form of access that adequately protects the public interest”. In an email dated 14 August 2020 the lawyers assisting the Coroner indicated that her Honour (i) took the view that any claim for public interest immunity should be considered first, (ii) was not inclined to make all of the protective orders sought by the Commissioner and (iii) did not consent to the Community Law Team (part of the CSO) continuing to appear for the Commissioner. The email indicated that the matter would be listed for a directions hearing to determine the application on 28 August 2020.

36. Over the coming months, written submissions and affidavit evidence was filed on behalf of the Commissioner. Parts of this material were “confidential”, and parts were “open”. The Commissioner was represented by different solicitors and counsel in each of the inquests, resulting in different evidence being adduced and multiple sets of written submissions. That is not meant as a criticism; it is simply a statement of how things panned out. The submissions and affidavit evidence were tendered as part of the court book (exhibit A) in the present proceedings.

37. In the Farrell Inquest there was an open affidavit and a confidential affidavit of Assistant Commissioner Michael Corboy, an open affidavit of Peter Thurtell and a confidential affidavit of Sergeant Nicholas Dixon. In the Adams Inquest there was a confidential affidavit of Assistant Commissioner Michael Willing and the same open affidavit of Peter Thurtell and confidential affidavit of Sergeant Nicholas Dixon. There was also evidence tendered in relation to both matters, apparently derived from the NSW Police Force Facebook page, of an interview by Assistant Commissioner Corboy. In the interview, Mr Corboy publicly discussed some of the contents of the Policy when addressing injuries suffered by a member of the public in the course of an unrelated police pursuit. This interview and the Facebook post were subject to correspondence between the lawyers. A letter dated 18 December 2020 from the CSO raised this public disclosure with the Commissioner. The same letter referred to the fact that the Queensland Police had made public its “Operational Procedure dealing with Urgent Driving and Pursuits”.

38. The applications were finally heard on 9 February 2021 (in open court) and on 12 and 25 February 2021 in closed court. The transcripts of those hearings were also included in the court book. The Coroner reserved her decision and listed the matter for judgment on 10 March 2021. On that date her Honour published two judgments although, as I have said, the first 130 odd paragraphs are essentially the same. Her Honour made non-publication orders over a small amount of the material. For the most part, the parties referred to the Farrell Judgment in making their submissions in this Court.

39. In relation to the possible claim for public interest immunity, her Honour indicated that the Commissioner had “been given an adequate opportunity” to present the claim and re-iterated the view expressed in earlier correspondence that this “exclusionary claim” should have been made “in the first instance” with the “protective orders” being sought if the public interest immunity claim was unsuccessful. Nothing turns on this at this stage. At the hearing before this Court, Counsel for the Commissioner indicated “[w]e don't press anything in relation to public interest immunity in this proceeding”.

40. Rather than attempting to summarise the evidence and submissions before the Coroner’s Court or provide a précis of her Honour’s reasons for judgment, I will follow the barristers’ lead and deal with the evidence and findings, where necessary, by reference to the grounds identified by the Commissioner as constituting error amenable to judicial review.

Ground A: Failure to consider the increased risk of dangerous behaviour by confirmation of information in the public domain

41. The summons puts Ground A in the following terms:

“The Deputy State Coroner’s refusal to make the orders sought by the Commissioner in relation to the Contested Farrell Information was infected by error of law on the face of the record or jurisdictional error on one or more of the following grounds:

the Deputy State Coroner rejected claims in respect of information:

which the Deputy State Commissioner considered could reasonably be deduced by members of the public or which members of the public might suspect or think likely to be the case; or

similar to information that is already in the public domain; or

which tends to contradict assumptions that some members of the public might make as to likely behaviour[s] of police,

without considering the risk of dangerous behaviour that may be increased by such information being confirmed, by more detail being provided in relation to the same subject matter, or by such assumptions being contradicted.”

42. This ground relates to her Honour’s reasoning concerning Categories 1, 2, 4, 5, 7, 9 and 10 of the categories of information referred to in [11].

43. I will put to one side whether this ground, as formulated in the summons, makes any assertion that could properly be categorised as a jurisdictional error or an error of law on the face of the record. On its face, it is an argument about the facts and evidence and reflects dissatisfaction on the part of the Commissioner to the conclusions reached by the Coroner.

44. The written and oral submissions formulate the ground as an assertion of “irrational”, “illogical” and “untenable” reasoning. The Commissioner complains that the Coroner failed to reason, or take into account, the possibility or likelihood, that people fleeing police may be influenced in their conduct by greater knowledge of the “actual” terms of the Policy. Several examples were given in the written submissions. It is also asserted that her Honour, illogically, took into account the fact that many of the policies would be “self-evident” to the public because they were little more than “common sense”. It was further submitted that her Honour erred in taking into account material already in the public domain such as the policies in place in other jurisdictions and resulting from disclosures made by Assistant Commissioner Corboy at his press conference, while not realising that the “[c]onfirmation of the terms of the NSW Police Force’s actual policy adds substantive detail to the NSW public’s knowledge of police practice”. It was suggested that the Coroner failed to appreciate that people may act on “incomplete information” and that a person involved in a police pursuit “may not be thinking clearly”. These are examples of the multifaceted attack made on the Coroner’s reasoning process.

45. Ultimately, the submission was that “the reasoning in which her Honour engaged was a failure to exercise jurisdiction because it led her Honour to erroneously find that there was no danger to the personal security of the public pursuant to s 74(2)(d) of the Coroners Act”.

46. The Attorney-General raised a question, without pressing a position, as to whether the Commissioner’s submissions fairly represented the reasoning process undertaken by the Coroner. The Attorney-General also emphasised the “test for illogicality and irrationality” articulated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (“SZMDS”) at [131]:

“What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

47. Ground A does not advance any independent error of law - it is ultimately an argument over the Coroner’s factual findings. There is (at least in the submissions) an allegation of jurisdictional error insofar as it is submitted that the illogicality and irrationality of the Coroner’s reasoning led her erroneously to conclude that a jurisdictional fact (that is, whether there was a danger to the personal security of the public under s 74 of the Coroners Act) was not established: SZMDS at [23]-[24] (Gummow ACJ and Kiefel J).

48. I am not satisfied that the Coroner acted irrationally, illogically or unreasonably. Her Honour was called upon to consider, amongst a number of other relevant factors, whether publication of the Policy would create a danger to the personal security of the public. By necessity, that evaluation had to take place on incomplete and speculative information – such as how a fugitive would behave in a hypothetical situation – and in circumstances where much information was already known to the public or would be readily apparent to the public. It was logically open to the Coroner not to be satisfied that communication of the additional information “would lead to any change in driver behaviour such as to result in the harmful effects contended for by the Commissioner”: Farrell Judgment at [43]. In failing to make the factual findings urged by the Commissioner, her Honour was correct - or at least her reasoning process was logical and rational - to take into account information already in the public domain by reason of the Assistant Commissioner’s press conference, the NSW Police Facebook post, the disclosure of the Policy in earlier inquests, and similar policies from other jurisdictions being published nationally. These are all matters relevant to whether it would be within the public interest to make the orders sought, having particular regard to the personal security of the public.

49. Even if it were to be accepted that there are flaws in the Coroner’s logic, it is important to apply the words of Bell and Crennan JJ in SZMDS at [130] that “[n]ot every lapse in logic will give rise to jurisdictional error”.

50. There was no actual or constructive failure by the Coroner to exercise her jurisdiction in this case. Her Honour was aware of her jurisdiction under the Coroners Act and the grounds upon which it could be exercised. The Coroner analysed the evidence and submissions carefully and logically. Ultimately, her Honour simply did not accept the Commissioner’s arguments. That does not amount to jurisdictional error. Ground A must be rejected.

Ground B: Failure to take into account the gravity of the potential harm to the public and application of the wrong legal test to that question

51. In the summons, Ground B is articulated as follows:

“The Deputy State Coroner concluded that any link between the communication of specific information and the harmful effects for which the Commissioner contended was “slight”, “remote” or “tenuous”, in circumstances where:

the relevant harm was a risk of dangerous behaviour which followed from the nature of information and the kinds of driver behaviour that might result from its disclosure, so that the link was clearly articulated;

it does not follow that, because a particular risk is slight, remote or speculative, the public interest in non-disclosure is also slight, remote or speculative; and

the real question for the Deputy State Coroner was to evaluate that risk, including both its likelihood and the gravity of possible consequences if it occurs, on the basis that that(sic.) a slight risk or mere possibility of harm may nevertheless be a serious matter engaging the principles of public interest immunity or warranting protective orders under the Coroners Act.”

52. This ground relates to her Honour’s reasoning concerning Categories 1, 2, 3, 4, 6, 7, 9 and 10 of the categories of information referred to in [11].

53. The Commissioner’s submissions under this ground draw a distinction between two possible legal approaches to the issue of assessing the potential of harm or danger to the public. These derive from the decision in AB v The Queen (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 (“AB v The Queen (No 3)”). In that case the Court drew a distinction between a “probable harm” approach and a “calculus of risk” approach. The former approach involves an assessment of the likelihood that the harm will occur, that is whether it is more probable than not that harm would be occasioned. This approach was rejected in AB v The Queen (No 3). The “calculus of risk” approach takes into account the gravity of the potential harm. Thus, a small risk or probability of a grave or catastrophic outcome will mean that the risk is not acceptable. This was the approach favoured by the Court in AB v The Queen (No 3) in the context of whether a non-publication order was necessary to protect the safety of a person. It is commonly applied in cases where this Court is called upon to decide whether a risk is unacceptable in the context of making supervision and detention orders pursuant to high risk offender legislation: see, for example, State of New South Wales v Kamm [2016] NSWSC 1 at [41] (Harrison J).

54. The Commissioner submits that the Coroner erred by adopting reasoning “consistent with” the “probable harm” approach. It was submitted that “nowhere in her reasons did the Coroner appear to consider the gravity or severity of the harms contended for by the Commissioner, if they came to pass”. It was submitted, among other things, that her Honour’s reference to the risk being “slight” and her references to the absence of a “link” between disclosure and a change of driver behaviour “bespeaks a concern with probability” and suggests that her Honour adopted the probable harm approach.

55. The Commissioner’s submissions under this ground have the appearance of an attack on a straw man. As the Commissioner acknowledged, the Coroner did not expressly adopt a “probability approach” to the question of whether a change in driver behaviour may cause a danger or risk to the safety of the public. The dichotomy in the two approaches was not mentioned in her Honour’s judgment, no doubt because, if it was mentioned at all, this issue did not loom large in the submissions made in the Coroner’s Court. The Attorney- General noted “the suggested need to apply a ‘calculus of risk’ approach does not appear to have been put to her Honour by the [Commissioner] or counsel assisting, in written or oral submissions”.

56. Her Honour was patently aware of the risks identified by the Commissioner. She referred to them in her judgment at [26] as “a risk of harm to responding officers or members of the public”. In [29] she said, “I accept and have given considerable weight to the importance of not doing anything to increase risks to the safety of the public and of serving police officers”. It is inconceivable that a magistrate exercising coronial jurisdiction would not be conscious of, and take into account, the potential for grave harm (including death and serious injury), in a case involving high speed car chases. That observation is amplified in the circumstances where the Coroner was in midst of coronial proceedings relating to the deaths of two men in the course of police pursuits.

57. Her Honour’s consideration of the degree of risk and the extent of any link between disclosure of the Policy and the potential harm to the public was appropriate and correct. The “calculus of risk” approach does not disregard an assessment of the degree or probability of risk; it simply acknowledges that even a very small risk of grave harm may be unacceptable or may mean that other relevant factors (such as open justice) may be overwhelmed or outweighed or need to play a subsidiary role in the decision making process.

58. The Attorney-General raised a question as to whether “it necessarily follows [from the terms of s 74(2)(d) and the decision in AB v The Queen (No 3)] that a coroner will fall into error unless he or she applies a ‘calculus of risk’ approach in the course of forming an opinion as to the public interest for the purpose of s 74(1) of the [Coroners] Act.” Because of the conclusions I have reached, it is not necessary to decide this issue conclusively. However, I accept the Commissioner’s submission that the calculus of risk approach is generally the preferred approach. It is correct, as the Commissioner submits, that s 74 of the Coroners Act creates a less onerous test for non-publication than s 8 of the CNSPO Act. This no doubt reflects the sensitivity of some of the issues that the Coroners Court will consider, as well as the absence of rules of evidence. However, as this case demonstrates, the failure of a Coroner to make reference to the test in terms or to consider the probability of a relevant risk manifesting itself does not of itself give rise to error, let alone jurisdictional error.

59. The Commissioner has not made good his contentions under Ground B. I reject that ground.

Ground C: The Deputy State Coroner considered that an application based solely on hypothetical situations or risks that may be speculative would lack a proper evidentiary basis or an adequate factual basis.

60. Ground C is set out in the summons as follows:

“The Deputy State Coroner considered that an application based solely on hypothetical situations or risks that may be speculative would lack a proper evidentiary basis or an adequate factual basis.”

61. The summons suggests that this ground “infected” the Coroner’s decision in relation to all of the categories of information set out in [11].

62. This ground is particularised as “Farrell Reasons at [30]”. The relevant paragraph of the Coroner’s judgment is in the following terms:

“I also accept, as was submitted to me, that the evidence of Assistant Commissioner Corboy and the exercise in which the Commissioner is engaged is necessarily speculative, at least to a degree (it involves predicting the possible adverse consequences of a hypothetical communication of material). Having said that, in matters of this kind there is still the requirement for the Commissioner to articulate an evidentiary basis for his claim. In this regard, I particularly note the evidence of Sergeant Dixon. This evidence, as I understood it, was directed to articulating the difficulty the Commissioner found in trying to locate the type of evidence that would be needed to support some of the contentions hypothesised in the remainder of the confidential evidence (the Affidavit was directed principally to the evidence read in the Adams inquest but, as already noted, was also read in the Farrell inquest). The difficulty in obtaining this evidence is not, as I see it, a reason for me not to insist on there being a proper evidentiary basis for any findings. Indeed, on one view, the matters deposed to by Sergeant Dixon serves merely to illustrate that there is an incomplete or inadequate factual basis for many of the harms pointed to in the balance of the confidential evidence (including in the confidential Affidavit of Assistant Commissioner Corboy given the similarity of his evidence to that of Assistant Commissioner Willing’s to which Sergeant Dixon’s evidence refers).”

63. It will immediately be seen that the first sentence of this paragraph runs contrary to the assertion made under Ground C. The Coroner acknowledges clearly that “the exercise in which the Commissioner is engaged is necessarily speculative, at least to a degree (it involves predicting the possible adverse consequences of a hypothetical communication of material.” The Commissioner accepts that this sentence is correct but contends that what follows was an erroneous rejection of the evidence of the Assistant Commissioners on the basis that, “in the absence of evidence that similar harms have occurred in Queensland, the remaining information is hypothetical and therefore incomplete and inadequate”.

64. The Attorney-General raises a question of whether the Commissioner’s summons and submissions fairly categorise her Honour’s approach. I do not think that it does. Apart from the first sentence of [30] in the Farrell Judgment, her Honour also dealt with the issue in the Adams Judgment. At [154] her Honour said specifically that she was “not suggesting that police, in order to succeed in a [Public Interest Immunity] claim, must be able to provide concrete examples of harm” and that “the task is a difficult and speculative one”. Her Honour went on to say, uncontroversially:

“…[W]here the amended pursuit guidelines have actually been released in Queensland, substantiated evidence of public harm occasioned in that state linked to the release of pursuit guidelines, might have some persuasive value in support of the present [Public Interest Immunity] claim. No such evidence has been provided.”

65. The reference to the situation in Queensland arose as a result of assertions made in the confidential affidavit of Assistant Commissioner Corboy dated 12 November 2019 and the confidential affidavit of Assistant Commissioner Willing dated 23 December 2020. [REDACTED]. Some examples were provided in the following paragraphs, although only some of those incidents appeared to have been caused by the fact that the guidelines were published. The lawyers assisting asked the Commissioner in writing to advise if there were any “concerning incidents” apart from those referred to in the affidavit. A further closed affidavit of Sergeant Dixon was provided, which indicated that no further information had been received from Queensland Police. The Coroner did not fall into error by referring to this absence of evidence and did not err by disregarding the concerns expressed by Mr Willing. Her Honour did not, as was submitted by the Commissioner, “confuse evidence of absence with an absence of evidence”.

66. The Commissioner submitted that the evidence in the confidential affidavit was “in the nature of expert evidence”. It is unnecessary to resolve that possibly ambitious submission. It suffices to say that such evidence is frequently and properly admitted in cases of this kind. It allows senior officers in sensitive cases to (as the Commissioner put it) “substantiate possible outcomes and conclusions that have not come to pass”. That does not make the evidence “expert evidence” and I note in passing the Attorney-General’s observations that neither deponent agreed to be bound by the Expert Code of Conduct. Nor are such senior officers generally exposed to cross-examination. There is a practice, in many cases where public interest immunity is claimed, for the Court to request further information.

67. I can discern no error in the Coroner’s approach to this evidence or anything in her Honour’s careful reasons for decision that suggests she made the errors asserted by Ground C. I would reject that ground.

Ground D: A failure to give reasons, or illogical and irrational reasoning, in relation to a fugitive’s decision making

68. Ground D is expressed in the summons as follows:

“Further , in relation to Categories 2, 4, 8 and 10, the Deputy State Coroner failed to give adequate reasons, or reasoned in an illogical or irrational manner, by not addressing the situation where a fugitive believes, in a given context, that there is an increased chance of police not pursuing or terminating a pursuit, as a result of which the fugitive may make decisions, such as continuing to flee by vehicle (rather than stopping the vehicle and fleeing on foot), which increase[s] the danger to themselves and others.”

69. As the summons makes clear, Ground D relates to Categories 2, 4, 8 and 10 of the categories of information set out in [11].

70. The Commissioner submitted, both below and in this Court, that an offender or fugitive involved in a police pursuit has a number of options including (i) continuing to flee in a car and (ii) getting out of the car and fleeing on foot. It was submitted that the former option creates a danger to the public and knowledge of the matters in categories 2, 4, 8 and 10 may “encourage an offender to continue to drive” because of the tactical advantage of having that information. It was submitted that the Coroner did not address these categories individually and failed to give “reasons for rejecting the proposition that disclosure may induce offenders to continue to drive where they might otherwise have continued on foot”. It was acknowledged that the reasons did not need to include reference to every submission.

71. The Attorney-General submitted in writing at [40] – [46]:

“40. In the present case, her Honour is said to have failed to give reasons on this ‘material question’: [Plaintiff’s Submissions (“PS”)] [45].

41. As to the alleged inadequacy of the reasons, counsel for the Attorney draw to this Court’s attention the High Court’s decision in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 (not cited in PS), in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction.

42. In determining Ground D, this Court may wish to have regard to the extent to which the question of fleeing on foot versus continuing to drive was addressed in the submissions before her Honour. The written submissions in the Farrell Inquest made reference to fleeing on foot only in the context of comments on the coloured table prepared in that Inquest, in relation to cl 7-6-6 of the [Policy] (falling within category 8). The argument was not ventilated in the written submissions in the Adams Inquest. In oral argument concerning cl 7-6-6, no reference was made to the question of fleeing on foot versus in a car. The question of fleeing on foot was raised, briefly, in oral argument concerning category 4, although the submission at that point seemed to be that knowledge of the need for authorisation to re-initiate a pursuit may make it more, rather than less, likely that a person may flee on foot.

43. Having regard to the limited written and oral submissions made on the issue, a question arises as to whether this Court may have difficulty in finding that the way in which the hearing was conducted before her Honour made the determination of the submission that is the subject of Ground D ‘essential to the final decision in the case’ in the manner described in Soulemezis v Dudley (Holdings) Pty Ltd.

44. As the plaintiff correctly accepts (PS [45]), a judge is generally not required to address every submission advanced in the course of a hearing. It is also appropriate to consider that her Honour’s reasons concerned the exercise of an evaluative judgment as to what the public interest required. Where the legal test to be applied involves the exercise of an evaluative judgment, ‘it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint’.

45. This Court may also have regard to the fact that discharge of the obligation to give reasons does not generally require lengthy or elaborate reasons. Rather, what is necessary is a statement of the essential ground or grounds upon which the decision rests, bearing in mind the need to take a ‘pragmatic and functional’ approach to the obligation to provide adequate reasons.

46. The alleged irrationality or unreasonableness (PS [45]) flows from her Honour’s view that an offender’s aim would remain to get away from police as fast as possible, regardless of whether or not the information was disclosed: see eg [Adams Judgment] at [194]. The plaintiff’s submissions do not address why no rational decision-maker could reason in that manner. In any event, this Court may consider that reasoning by her Honour, to the effect that an offender would seek to get away from police as soon as possible, does not necessarily involve a rejection of the proposition that knowledge of the information in question may encourage an offender to continue to drive, rather than to flee on foot (in order to best achieve the aim of getting away from police as fast as possible): cf PS [44].”

(Footnotes omitted.)

72. This ground was not pressed with great vigour at the hearing in this Court. The force in the Attorney-General’s written submissions was acknowledged:

“Your Honour, in relation to ground D, it complains that her Honour has in effect not accepted a particular argument put on behalf of the commissioner, and not explained her non-acceptance of it. There is, and it's dealt with in the written submissions from paragraphs 40 to 45. I probably can't take it further than the written submissions do, and I don't propose to labour it before your Honour because there is some force in what our friends say at paragraphs 42 to 43 of their submissions about the quite limited way in which the argument was put to her Honour. It seems only to have been raised in relation to two categories, and even then not very prominently and perhaps not even very clearly, so the points that our learned friends make in paragraphs 42 to 43 are difficult for us to answer, so I'm not abandoning it but I don't want to spend your Honour's time labouring it, and I'll just let the written submissions speak to that in that regard. So those are the submissions for the plaintiff.” [5]

5. Tcpt, 6 April 2021, p 37.

73. I am satisfied that the Coroner sufficiently explained her reasons for her approach to this aspect of the Commissioner’s application. There was nothing in those reasons that amounted to legal unreasonableness. The issue was not a particularly large one at the hearing and the approach adopted by the Coroner was both open to her Honour and a rational response to the limited submissions made on the issue.

74. Ground D must be rejected.

Ground E:    The Coroner failed to consider her implied or incidental power and/or failed to provide adequate reasons for not exercising that power

75. The summons puts Ground E in the following way:

“In relation to the information which the Deputy State Coroner decided should be the subject of protective orders, the Deputy State Coroner held that her power to make the non-publication orders under section 74 of the Coroners Act was sufficient, without considering whether to make associated non-disclosure orders in reliance on her incidental or implied power to do so (Ground E): Farrell Reasons at [128].”

76. The submissions appear to go further and contend that the Coroner failed to consider or exercise her statutory power under s 74 of the Coroners Act and her implied power to make a suppression order. The written submissions asserted at [50] – [52]:

“50. The definition of ‘publish’ [in s 73] has the effect that an order made under s 74 does not prevent disclosure by means not listed in s 73. The use of s 74 alone therefore is, contrary to the Deputy State Coroner’s comments, not ‘sufficient for the material which will be tendered’.

51. The non-disclosure orders sought for by the Commissioner were therefore not considered or addressed by the Deputy State Coroner.

52. Her Honour should have held that s 74 also conferred the power to grant non-disclosure orders necessary to give effect to her Honour’s orders for non-publication.”

77. At the hearing in this Court, [6] counsel for the Commissioner accepted the following correction in the Attorney-General’s written submissions at [50] – [52]:

“50. Dealing first with the question of power, the plaintiff submits (PS at [52]) that her Honour should have held that s 74 conferred the power to grant non-disclosure orders (ie, in effect, suppression orders) “necessary to give effect to her Honour’s orders for non-publication”. The plaintiff has not explained why non-disclosure orders were necessary to give effect to the non-publication orders made, having regard to the limited definition of “published” in s 73. That definition does not prevent dissemination of information between persons, but it is not clear why the plaintiff suggests that publication (as defined) would necessarily follow if such dissemination were to occur.

51. This Court may form the view that the real question of power is not (as suggested by the plaintiff) what incidental power may be necessary to the exercise of the power conferred by s 74 of the Act, but whether the Coroners Court has an implied power to issue an order providing for non-disclosure or suppression of material tendered in evidence. The Attorney submits that the Coroners Court does have such power.

52. It is well established that ‘a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction’. The Coroners Court falls within the scope of this principle. As French CJ explained in Hogan v Hinch:

‘at common law the open justice principle has, consistently with the judicial function, long been subject to qualifications reflected in the inherent jurisdiction of courts or their implied incidental power to hear part of their proceedings in camera and to restrict the publication of evidence or the names of witnesses.’”

(Footnotes omitted.)

6. Tcpt, 6 April 2021, p 12.

78. Insofar as it is necessary to decide the issue, I accept that the Coroner has the implied or incidental power to make non-publication order, and non-disclosure or suppression orders over material adduced in evidence, evidence gathered in the course of a coronial investigation and material held on the Court file. I accept the joint position of the Commissioner and the Attorney-General and do not accept that the existence of express powers in ss 65 and 73 – 74 of the Coroners Act denies or excludes the existence of other (incidental) powers to limit the application of the open justice principle where the Coroner forms the view that the exercise of such a power is necessary in the interests of justice. [7]

    7. See the discussion of the application of the so-called expressio unius principle in Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 93-94; [1982] HCA 2 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 560; [2002] HCA 49 at [34].

79. However, I do not accept that the Coroner failed to consider, or misunderstood, the source and nature of her powers. Her Honour’s judgments indicate that she was well aware of the options available but took the view that the real vice was in the widespread dissemination of the material either via the mass media or by dissemination on the internet. Those matters are covered in s 74 by virtue of the definition of publishing in s 73 of the Coroners Act.

80. The Coroner referred at [128] to the fact that the Commissioner’s application included reliance on s 65 and the “coroner’s incidental power”. At [2] her Honour referred to fact that that the “protective orders” sought by the Commissioner included “non-disclosure” orders and made reference to the High Court’s decision in HT v The Queen concerning the capacity of an inferior court to “tailor” orders to meet “the demands of the public interest and fairness in litigation”. [8]

    8. [2019] HCA 40 at [33]; 93 ALJR 1307.

81. Read fairly, the Coroner’s judgment makes it clear that her Honour considered the other powers available and the alternative orders that she could have made. Ground E, on the terms set out in the summons, cannot be sustained.

82. At the hearing, Ground E appeared to transmogrify into an issue about the adequacy of her Honour’s reasons. It was conceded (in reply) that “it might well be true” that the Coroner was conscious of the breadth of the application but submitted that the discussion in the judgment was inadequate. However, it is clear from [128] of the Farrell Judgment that the Coroner formed the view that a non-publication order under s 74 was sufficient. Her Honour went on to say that any application to access the file could be dealt with under s 65 if the issue arose. Her Honour made reference to the provision in s 74(2) that “coronial proceedings should generally be open to the public” and to the issue concerning “personal security of the public or any person” (which encompasses the safety of the police). It is at least implicit in the two judgments that her Honour took the view that an order under s 74 was adequate because such an order would prevent widespread dissemination of those parts of the policy that ought not be made available to the public generally. The duty to provide reasons did not encompass any greater obligation

83. Whether it be restricted to the formulation in the summons, or expanded to encompass the adequacy of the reasons for judgment, Ground E is not established.

Legal unreasonableness

84. In respect of the various assertions made under the particular grounds advanced, counsel for the Commissioner emphasised that an “intelligible justification” for the decision must be found within the Coroner’s reasons for judgment: Minister for Immigration and Broder protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [47]. Counsel stressed that the concept of “legal unreasonableness” pre-dates, and is different from, the concept that has come to be known as “Wednesbury unreasonableness”: Minister for Immigration and Citizenship v Li (2014) 249 CLR 332 at 362-363; [2013] HCA 18 at [65]. I accept that the concept discussed in Li is broader than the formulation often employed by reference to Wednesbury, namely that no reasonable decision maker could come to the decision under review. As Gageler J put it in Li at [91], the concept extends beyond why a decision is made to the question of how that decision is made. The decision maker must engage in a rational process of reasoning and there is a presumption that they will provide “plausible justification” for their decisions: Li at [91] – [92] (Gageler J). A failure to comply with these requirements may lead to a finding of legal unreasonableness and a conclusion that the decision maker failed to exercise the jurisdiction entrusted in them.

85. I have applied these requirements to the specific grounds advanced by the Commissioner and also in making a global assessment of the reasons for judgment and decisions made by the Coroner.

86. Far from amounting to an irrational or unreasonable exercise, her Honour’s judgments provided a cogent and detailed explanation for the decisions to which she came. While not every argument advanced was addressed in detail, and while another decision maker might have reached a different conclusion in relation to some parts of the Policy, the path towards her Honour’s decision is clearly articulated, logical, rational and reasonable. Her Honour was conscious of the nature of her jurisdiction, the grounds upon which that jurisdiction was to be exercised, and the important issues that the Commissioner’s application raised. She made rational factual findings based on the evidence and gave effect to those factual findings in exercising that jurisdiction appropriately.

87. No error of law on the face of the record is established. There was no jurisdictional error.

Disposition

88. The summons should be dismissed.

**********

Endnotes

Amendments

03 May 2021 - Typographical error in [14] amended.

Decision last updated: 03 May 2021