Commissioner of Police v Attorney General for New South Wales

[2022] NSWSC 595

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595

Hearing dates:

14 April 2022 and 16, 24 and 27 May 2022

Date of orders:

16 May 2022 and 27 May 2022

Decision date:

31 May 2022

Jurisdiction:

Common Law

Before:

Wright J

Decision:

1   An order in the nature of certiorari setting aside:

a.   so much of order 7(d)-(e) made on 1 February 2022 as concerns orders 3, 4, 5 and 6 made on the same day;

b.   orders 8, 9, 14(d)-(e) and 14A made on 1 February 2022;

c.   so much of order 29 made on 1 February 2022 as it relates to the Plaintiff’s claims for public interest immunity in respect of the contested information identified in the red cells in Confidential Schedules A and B to these orders; and

quashing the decision of the Second Defendant made on 17 December 2021 to the extent that it is reflected in those orders.

2   An order in the nature of certiorari setting aside order 29 made on 1 February 2022 and quashing the decision of the Second Defendant made on 17 December 2021 to the extent that they relate to the application for non-publication orders in respect of the information identified in the orange cells in Confidential Schedule A to these orders.

3   An order remitting the matter to the State Coroner or a Deputy State Coroner for the Plaintiff's claims for public interest immunity and application for non-publication orders in respect of the information identified in orders (1) and (2) to be determined according to law.

4   The Plaintiff's Summons filed on 16 March 2022 otherwise be dismissed.

5   There be no order as to costs.

6 Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the grounds in sections 8(1)(a) and (c) of the Act, and/or in the exercise of the Court's inherent jurisdiction, the Court orders:

a.   In relation to the information contained in Confidential Schedules A and B to these orders, tabs 2, 3, 18, 20, 22A, 24, 26, 27, 31, 33, 34, 35, 36, 39, 50, 51, 52 and 55 of the Court Book filed by the Commissioner on 1 April 2022 (MFI 1), tender bundle B (MFI 2) and Exhibit C:

i.   subject to sub-paragraph (ii), there is to be no disclosure (by publication or otherwise) of the information contained in those documents, including any part of any submissions referring to that information;

ii.   the information referred to in sub-paragraph (a) above may be disclosed to the Coroner’s Court, Court staff and officers, the legal representatives of the parties to the application and those assisting the Second Defendant in relation to the Coroner’s Court proceedings.

b.   In relation to the information contained in tabs 28, 30, 41, 43, 44 and 54 of the Court Book filed by the Commissioner on 1 April 2022 (MFI 1) there is to be no publication of the information contained in those documents, including any submissions referring to that information.

7   Pursuant to section 12 of the Act, order 6 applies for 50 years or until further order.

8   Pursuant to section 11 of the Act, order 6 applies throughout the Commonwealth of Australia.

9   Liberty to apply.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – error of law – error of law on the face of the record – s 69 of the Supreme Court Act 1970 (NSW) – not in issue that Coroner’s reasons form part of the record

ADMINISTRATIVE LAW – Jurisdictional error – error of law on the face of the record – failure to consider clearly articulated claim or submission – failure to consider substantial evidence in respect of clearly articulated claim – failure to accord procedural fairness

EVIDENCE – Public interest immunity – general principles – identification of relevant harm to public interest from disclosure – identification of relevant harm to public interest from non-disclosure - balancing the gravity of harm to public interest from disclosure against the gravity of harm to public interest from non-disclosure – whether potential relevance in coronial proceedings sufficient to establish harm to the public interest in the administration of justice from non-disclosure of material information – significance of tailored orders

COURTS AND JUDGES – Coroner’s court – coronial proceedings – procedural fairness – excluding information on the basis of public interest immunity does not involve denial of procedural fairness

COURTS AND JUDGES – Principles of open justice – open justice in coronial proceedings – relevance to determining public interest immunity claim and effect of tailored orders

Legislation Cited:

Coroners Act 1980 (NSW), ss 22, 22A

Coroners Act 2009 (NSW), ss 3, 10, 23, 27, 46, 47, 49, 57, 58, 59, 60, 62, 63, 65, 66, 73, 74, 79, 81, 82, 103, 103A

Court Suppression and Non-publication Orders Act 2010 (NSW)

Criminal Procedure Act 1986 (NSW), s 141, Ch 6, Pts 3 and 4

Evidence Act 1995 (NSW), s 130

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Al Rawi v Security Service [2012] 1 AC 531; [2011] UKSC 34

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7

Attorney General v Mirror Newspapers [1980] 1 NSWLR 374

Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667

Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39

Bilbao v Farquhar [1974] 1 NSWLR 377

Commissioner of Police, New South Wales v Guo [2016] FCAFC 62

Conway v Jerram, Magistrate and NSW State Coroner [2011] NSWCA 319

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Day v SAS Trustee Corporation [2021] NSWCA 71

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Goodwin v Commissioner of Police [2010] NSWCA 239

HTv The Queen (2019) 269 CLR 403; [2019] HCA 40

ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75

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

Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner (2010) 78 NSWLR 689; [2010] NSWSC 371

Minister for Immigration and Citizenship v SZRKT (2014) 212 FCR 99; [2013] FCA 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Musumeci v Attorney General of NSW (2003) 57 NSWLR 193; [2003] NSWCA 77

Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308

R v Lipton (2011) 82 NSWLR 123

R v Saleam [1999] NSWCCA 86

Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552

Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285

Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Telstra Corporation Limited v Attorney General for New South Wales [2021] NSWSC 1521

The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34

Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24

X v Deputy State Coroner for New South Wales (2001) 51 NSWLR 312; [2001] NSWSC 46

Yufeng Mao v Commonwealth of Australia [2012] NSWSC 370

Texts Cited:

New South Wales, The Law Reform Commission, Report of the Law Reform Commission on the Coroners Act, 1960 (L.R.C 22), (1975)

Category:

Principal judgment

Parties:

Commissioner of Police (Plaintiff)
Attorney General for New South Wales (First Defendant)
Magistrate H Grahame, Deputy State Coroner (Second Defendant) – Submitting appearance

Representation:

Counsel:
J Emmett SC and B Kaplan (Plaintiff)
P Herzfeld SC and J Wherrett (First Defendant)

Solicitors:
HWL Ebsworth (Plaintiff)
Crown Solicitor of New South Wales (First Defendant)

File Number(s):

2022/075544

Judgment

Background

1. Mr Todd McKenzie tragically died on 31 July 2019. Immediately prior to his death, he was the subject of a police operation involving various units of the New South Wales Police Force. Mr McKenzie was suffering from identifiable mental illness at the time of the police operation. During that operation after it was reported that he was armed with a knife and, after unsuccessfully attempting to negotiate with him, police surrounded and entered Mr McKenzie’s home in order to detain him.

2. A coronial inquest was required to be held concerning Mr McKenzie’s death by virtue of ss 23(1)(c) and 27(1)(b) of the Coroners Act 2009 (NSW). Consequently, a coronial brief of evidence was assembled by police investigators assisting the Coroner and an opportunity was given to the plaintiff, the Commissioner of the New South Wales Police, to review the material in the brief of evidence and make any application for public interest immunity or suppression or non-publication orders, if thought appropriate.

3. The Commissioner made such an application which was heard by the second defendant, Deputy State Coroner Grahame. On 17 December 2021, the Coroner made her decision rejecting all the claims for public interest immunity but making various suppression and non-publication orders and other ancillary orders. As a result of the complexity of the material to which the decision related, the orders initially made on 17 December 2021 required amendment to give proper effect to the Coroner’s decision. The orders ultimately disposing of the Commissioner’s application were made on 1 February 2022.

Judicial review application and parties

4. By a summons filed on 16 March 2022, the Commissioner has sought judicial review of the Coroner’s decision.

5. On 1 April 2022, Dhanji J ordered that the Attorney General be joined as the first defendant to these proceedings to act as contradictor. The Deputy State Coroner became the second defendant at that stage and a submitting appearance was filed on her behalf. It should also be noted that Mr McKenzie’s father, Mr M McKenzie, and his mother, Ms Wilkins, had been found by the Coroner to have a sufficient interest in the coronial proceedings and were permitted to make submissions to the Coroner in relation to the Commissioner’s application. In addition, two named police officers had also been allowed to be represented and to make submissions in relation to that application. These persons were referred to in the coronial proceeding as “the interested parties”, although at times it appeared that this expression was used only in respect of Mr McKenzie’s family members. In the course of considering whether the Attorney General should be joined, Dhanji J noted that all the interested parties had been informed of these judicial review proceedings but none had indicated any wish to be joined in these proceedings or to seek to be heard in this Court.

6. On 14 April 2022, the application for judicial review came on for hearing.

7. Before turning to consider the decision and orders to which the judicial review application relates, it is appropriate to note that suppression, non-publication and related orders were made in this Court in order to prevent disclosure of information or documents which might undermine the usefulness, or defeat the purposes, of these proceedings before they were determined.

Suppression, non-publication and related orders

8. On 16 March 2022, N Adams J ordered in these proceedings that:

“3. Until further order of the Court:

a. access to the Court’s file in this proceeding be restricted such that access is not permitted to a non-party except with the leave of the Court, and with prior notice to the parties to allow them an opportunity to be heard in respect of any application for access; save that

b. in addition to the parties, the Attorney General of New South Wales or his legal representatives be permitted access for the purpose of considering whether he seeks to be joined to the proceedings or to intervene.”

9. This order 3 remains in force.

10. At the hearing on 14 April 2022, I made interim suppression orders for the reasons given at that time. Those orders were as follows:

“Pursuant to s10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) and on the grounds in sections 8(1)(a) and (c) of the Act and in the Court's inherent jurisdiction until further order, the Court orders:

1.   In relation to the information contained in tabs 2, 3, 18, 19, 20, 22A, 23, 24, 26, 27, 28, 30, 31, 33, 34, 35, 36, 39, 41, 43, 44, 50, 51, 52, 54 and 55 of the Court Book filed by the Commissioner on 1 April 2022, MFI 1 and Exhibit C:

(a) Subject to paragraph (b) there shall be no disclosure of the information contained in those documents including any oral evidence or submission referring to that information.

(b) The information contained in those documents may be disclosed to the Court, Court staff and officers and the legal representatives of the parties to the application.

2.   In relation to the information contained in the confidential tender bundle B, MFI 2:

(a) Subject to paragraph (b) there will be no disclosure of the information contained in the documents in MFI 2 including any oral evidence or submission referring to that information.

(b) The information contained in those documents may be disclosed to the Court, Court staff and officers and the legal representatives of parties to the application.”

11. In light of those orders and the sensitivity of the information in question, the fact that the Coroner’s reasons have not been published in any form and portions of the reasons have been redacted and the unredacted version has not been provided to persons other than the parties to these proceedings and their legal representatives, I have attempted, in this judgment, to refer to relevant material using circumlocutions in a manner which exposes my reasons for my conclusions without disclosing any information which ought not to be disclosed.

12. Further, the initial orders I propose to make will provide the parties with the opportunity, after delivery of this judgment, to consider:

1. whether any, and if so what redactions, should be made to this judgment before publication; and

2. the form of any final suppression and non-publication orders that would be appropriate in the proceedings in this Court.

The Deputy State Coroner’s orders

13. The final form of the Coroner’s orders, intended to give effect to her decision of 17 December 2021 and issued on 1 February 2022, extended over 6 pages and 29 paragraphs (Tab 20 in Ex A). The relevant information and documents to which the orders related were identified in some cases by reference to various colour coded schedules and an “Aide Memoire”, provided by the Commissioner to the Coroner.

14. In no case was the Commissioner’s claim of public interest immunity successful. Consequently, no material in relation to which the Commissioner claimed public interest immunity was to be excluded from the coronial brief of evidence.

15. The Coroner’s 1 February 2022 orders can be summarised as follows:

1. suppression orders – orders 1, 3, 4, 5, 6, 13, 15, 25 and 26 – expressed in the following terms:

1. orders “[p]ursuant to ss. 65 and 74 of the Coroners Act 2009 and the Court’s implied powers, [that] there is to be no disclosure (by publication or otherwise)” of the information or documents described in orders 1, 3, 4, 5, 6, 13 and 15; and

2. orders “[that] there is to be no disclosure (by publication or otherwise)” of the information or documents described in orders 25 or 26;

2. non-publication orders – orders 10, 11, 21 and 27 – expressed in the following terms:

1. orders “[p]ursuant to ss. 65 and 74 of the Coroners Act 2009 and the Court’s implied powers, [that] there is to be no publication” of the information or documents described in orders 10, 11 and 21; or

2. an order “[that] there is to be no publication” of the information or documents described in order 27;

3. orders expressly establishing that the suppression orders 1, 3, 4, 5, 6, 13 and 15, did not prevent disclosure to the Coroner’s court, counsel and solicitors assisting the Coroner, necessary court staff, current NSW Police Force officers, two named experts, and “legal representatives of the interested parties to the inquest” – orders 7, 14 and 15A;

4. orders establishing a restricted access regime for documents and information which were the subject of the suppression orders by provision of watermarked hardcopies to the named experts and the “legal representatives of the interested parties to the inquest” but allowing inspection of those documents and information by “family members of Mr Todd McKenzie” in the manner set out in the orders – orders 8, 14A and 16;

5. orders making arrangements for “representatives of the family members of Mr Todd McKenzie” to view “the red, brown and yellow material remotely in accordance with orders 8(b)(iii) and 16(b)(iii)” – orders 17-20;

6. orders directing the Commissioner to:

1. “furnish a list of all the pseudonyms to be applied to any of the officers falling within order 1” – order 2;

2. “prepare further Amended Revised Schedules A and B, identifying the information falling within orders 3-6” – order 9;

3. “prepare revised Amended Revised Schedules A and B … identifying all the information falling within orders 10 and 11” – order 12;

4. “identify any and all” information relating to six matters identified in pars  (a) to (f) – order 22;

7. orders making arrangements for consideration of whether non-publication orders should be made in respect of the information identified by the Commissioner as a result of complying with order 22 – orders 23 and 24;

8. an order that proposed redactions to the Coroner’s findings in the inquest were to be provided to the interested parties 5 days prior to those findings being published – order 28; and

9. an order otherwise dismissing the Commissioner’s application – order 29.

16. The documents and information the subject of the various suppression and non-publication orders were identified by a number of means as follows:

1. by reference to the fact that the information identified or tended to identify certain persons: order 1;

2. by reference to the material marked in red in Amended Revised Schedules A and B that identified different, specified matters: orders 3, 4, 5, 6, 10 and 11;

3. by reference to documents that were annexures to an identified statement: order 13;

4. by reference to documents described in “Revised Schedule B” column 4 as belonging to categories 1, 2A-2B, 3, 4A-4B, 5D-5O and 6A-K: order 15;

5. by reference to information referred to in [7] and [8] in the Aide Memoire dated 9 November 2021 and information marked in blue in Amended Revised Schedule A: order 21; and

6. by reference to specified paragraphs or parts of paragraphs of two confidential affidavits: orders 25, 26 and 27.

17. There appears to be an inconsistency in these orders. The suppression orders in orders 1, 3, 4, 5, 6, 13 and 15 are absolute in their terms but orders 7, 14 and 15A expressly state that those suppression orders do not prevent disclosure to the Coroner’s court, counsel and solicitors assisting, necessary court staff, current NSW Police Force officers, two named experts, and “legal representatives of the interested parties to the inquest”. In these circumstances, it appears that those suppression orders prevent disclosure to any persons not listed in orders 7, 14 and 15A, including family members of Mr Todd McKenzie. Such a conclusion is, however, inconsistent with orders 8(b), 14A (b) and 16(b) which expressly envisage inspection of those documents and information by, and thus disclosure to, “family members of Mr Todd McKenzie”.

The application for judicial review and grounds of review

18. The Commissioner’s summons seeking judicial review of the Coroner’s decision was filed on 16 March 2022 and relevantly sought orders as follows:

“6. An order in the nature of certiorari setting aside so much of the decision of the Deputy State Coroner made on 17 December 2021 as has been successfully challenged by the Commissioner in these proceedings.

7. An order in the nature of mandamus remitting so much of the Commissioner’s application as has been successfully challenged in these proceedings to the Deputy State Coroner, or another Coroner should this Court direct that another Coroner exercise the function, for determination according to law.

8. Costs.”

19. The information and documents which were the subject of the judicial review application were identified in Schedules A and B to the summons and were referred to as the “contested information”. The contested information was only a subset of the information and documents which were the subject of the orders made by the Coroner because, as Mr Emmett of Senior Counsel who appeared with Mr Kaplan for the Commissioner noted, a number of the Coroner’s conclusions in relation to public interest immunity and suppression and other orders were not challenged.

20. It was accepted by both the Commissioner and the Attorney General that, if the Commissioner were to be successful in challenging the Coroner’s decision of 17 December 2021 and the orders made on 1 February 2022 giving effect to that decision were liable to set aside in part, the most appropriate course would be for the Court to hand down its judgment dealing with the grounds of review but not make final, dispositive orders until the parties had had an opportunity to reach agreement or make submissions as to the appropriate form of such orders and any suppression, non-disclosure or other orders in relation to this judgment or the material before the Court. I propose to adopt that course.

21. Three grounds of review were identified in the summons.

Ground 1

22. The first ground of review related to the Coroner’s rejection of the Commissioner’s claims of public interest immunity in their entirety. Ground 1 was in the following terms:

“1. In determining the claims of public interest immunity made by the Commissioner, the Deputy State Coroner erred in law, or fell into jurisdictional error, in that her Honour failed to balance the public interest in disclosure of the Contested Information against the public interest in maintaining privilege in respect of that information.”

23. Particulars of ground 1 were identified as being that the Deputy State Coroner:

“a. found that, if Contested Information was potentially or conceivably relevant to the inquest, the public interest in the administration of justice (or the public interest in the objectives of the coronial jurisdiction) would be prejudiced if the Commissioner’s claims of public interest immunity were upheld;

b. failed to balance that public interest against the public interest in avoiding the harm that the Deputy State Coroner accepted would flow from disclosure, taking into account the gravity of the harm and the likely significance or insignificance to the inquest of the information; and

c. proceeded on a misunderstanding of the Coroners Act 2009 (NSW) by reasoning that the principles of open justice assumed even greater importance than they otherwise might in curial proceedings.”

24. The summons then identified that the paragraphs of the Coroner’s reasons relevant to ground 1 were [62]-[65], [90], [92]-[93], [99]-[105], [132]-[134], [136], [160]-[164], [167]-[168], [185]-[188], [197]-[198], [200]-[201] and [211]-[214].

25. Since ground 1(a) and (b) were related and ground 1(c) identified a discrete matter, it will be convenient to deal with ground 1(a) and (b) together and ground 1(c) separately.

Ground 2

26. The second ground of review related to the Coroner’s failure to make any suppression, non-disclosure or restricted access orders in relation to a limited category of information. Ground 2 was as follows:

“In not making any protective orders in relation to information contained in Amended Revised Schedule A relating to “triggers”, despite making such orders in relation to the same, or similar, information contained in Amended Revised Schedule B, the Deputy State Coroner acted irrationally or illogically, thereby erring in law or falling into jurisdictional error”.

27. The paragraphs of the Coroner’s reasons which were said to relate to ground 2 were identified as [189], [216]-[217] and [225]-[229].

Ground 3

28. The third ground of review involved the contentions that the Coroner had erred in law or fallen into jurisdictional error by overlooking or not considering a claim or evidence as follows:

“a. The Deputy State Coroner overlooked a claim made by the Commissioner in relation to information about how lasers carried by Tactical Operations Unit/Tactical Operations Regional Support police officers differed in their characteristics from those carried by general duties police officers (at [160]-[172]).

b. The Deputy State Coroner overlooked, failed to consider or misunderstood the documents listed at items 5A-5C in Amended Revised Schedule B in finding that they did ‘n[o] more than to record annual training days of the involved officers in previous years’ (at [194]).

c. The Deputy State Coroner overlooked, failed to consider or misunderstood the evidence before her Honour in rejecting the Commissioner’s claim for protective orders in relation to the automated welfare check system of the New South Wales Police Force (at [279]-[281])”.

Colour coding in Schedules A and B

29. The contested information identified in Schedules A and B to the summons was colour coded by reference to the grounds of review as follows:

1. RED: Items in the red cells of the two schedules were the subject of ground 1 and, in a limited number of cases, were the subject of other grounds as well – in other words the Commissioner contended that the information or documents in the red cells should be withheld from the coronial brief of evidence on the ground of public interest immunity and, alternatively in some cases, should be the subject of protective orders on the basis of ground 2 or 3;

2. YELLOW: Items in the yellow cells of the two schedules were the subject of ground 2 only – in other words the information in the yellow cells related to the “triggers” and the Commissioner contended that the decision in relation to this information was irrational when compared to how other similar information was dealt with; and

3. ORANGE: Items in the orange cells in Schedule A were the subject of ground 3 only – in other words the information in the orange cells in that schedule was information in relation to which the Coroner was said to have overlooked or not considered a relevant claim or relevant evidence. There were no orange cells in Schedule B. The cells which appeared to be dark orange in Schedule B were only introductory to what followed in either the red or yellow cells.

Ground 1(a) and (b)

30. Particulars (a) and (b) of the first ground of review raised in substance the contention that the Coroner erred in law, or fell into jurisdictional error, when determining the Commissioner’s claims for public interest immunity by failing to balance, in accordance with the applicable principles:

1. the public interest in favour of non-disclosure of the information or documents;

against

2. the public interest in favour of disclosure of the documents or information for the purposes of the inquest.

31. In particular, this ground of review effectively involved contentions that:

1. the Coroner erred by reasoning that: (a) since the contested information was potentially or conceivably relevant to the inquest, the administration of justice would be relevantly prejudiced if the public interest immunity claim were upheld; and (b) this was in effect a sufficient basis for rejecting the public interest immunity claim, because that reasoning did not involve balancing the competing public interests as required; and

2. the gravity of the harm flowing from disclosure and the likely significance or insignificance to the inquest of the information or documents should have been taken into account when balancing the competing public interests but were not.

Submissions

The Commissioner’s fundamental submission in relation to ground 1(a) and (b) was that, although the Coroner identified the relevant principles to be applied in determining a claim for public interest immunity in a coronial inquest, including the balancing exercise required by authorities such as in Alister v The Queen and in Sankey v Whitlam, her Honour’s reasons disclosed that the balancing was not carried out in accordance with those principles.

32. It was submitted that, in relation to much of the contested information, the Coroner concluded that the Commissioner’s claim for public interest immunity must fail because the information could, might or may be relevant to findings that might be made at the conclusion of the inquest about the manner and cause of death or to recommendations that might be made. The Commissioner’s submissions contended in substance that there were a number of errors in this approach.

33. First, it was submitted that mere relevance or potential relevance of information to the exercise of the Coroner’s functions under ss 81 and 82 of the Coroners Act or to the interests of interested parties was not sufficient to establish that there was a public interest in disclosure. It was contended that identifying the existence and degree of relevance of the contested information to the inquest marked the beginning and not the end of the balancing exercise to be undertaken. It was said that, although the Coroner accepted that relevance was a question of degree, her Honour failed to assess the potential significance, potential importance or the likelihood, of the information being relevant to the inquest based upon the material available to her Honour at the time.

34. Secondly, it was submitted that the Coroner’s approach was erroneous because potential relevance of information to the inquest was not by itself sufficient to defeat a claim of public interest immunity without the required balancing exercise being conducted, which did not occur in the present case. The Commissioner submitted that her Honour failed to perform the balancing exercise as required in that her Honour approached the exercise effectively on the basis that potential relevance was determinative or dispositive of whether a claim for public interest immunity should be upheld.

35. Illustrations of these types of erroneous approaches by the Coroner were said to be found in the reasoning which supported her Honour’s rejection of the various claims for public interest immunity at [93], [137], [161], [186], [198], [200] and [212] of her reasons.

36. The Commissioner also submitted that, consistent with the failure to conduct the balancing exercise as required, there was no apparent recognition by the Coroner that information of distant or remote relevance to the inquest might more readily be outweighed by the public interest in non-disclosure. Although the Coroner referred to a “risk calculus approach”, it was submitted that her Honour failed to consider and weigh the risk of harm to effective policing against the public interest in disclosure, especially where the relevance of the information to the inquest was peripheral. In this context, the Commissioner contended that even if a balancing exercise was undertaken in relation to certain information, the required balancing exercise was not undertaken because the critical element of the degree or extent of risk was not balanced but only the fact of risk.

37. In relation to suppression and non-publication orders, the Commissioner submitted that the Coroner adopted the flawed or erroneous approach of pitting suppression and non-publication orders (referred to as “tailored orders”) against public interest immunity such that, if the tailored orders were “sufficient” to protect the “confidentiality” of the information, the claim for public interest immunity should be rejected. The Commissioner submitted in effect that, while it might be appropriate to take into account tailored orders which could be made when conducting the required balancing exercise, the Coroner needed to consider and balance the risks resulting from disclosure even on the limited basis permitted by the tailored orders against the public interest in disclosure having regard to the nature and extent of that interest. It was contended in substance that the Coroner did not consider the extent of the risk of harm from disclosure subject to tailored orders which was an essential part of the balancing exercise required to be carried out, if tailored orders were under consideration.

38. The Attorney General submitted that when considering the proper approach to the balancing exercise in a coronial context it was important to have regard to the legislative context and nature of coronial proceedings. It was noted that a coroner’s court has been described as a “court of investigation” and has the function of making findings as to the manner and cause of death, under s 81 of the Coroners Act, as well as the broad power to make such recommendations as are considered necessary or desirable, under s 82. It was submitted that, as a result, the approach to assessing whether a document was “material” adopted in ordinary adversarial litigation was inapt in the coronial context. Rather, the question for the coroner was whether the document would “materially assist” in the discharge of a statutory duty and the exercise of the broad power to make recommendations. In addition, since an inquest was required to be held where a person died “as a result of police operations”, by virtue of ss 23(1)(c) and 27(1)(b) of the Coroners Act, there was an evident legislative intent to ensure that the conduct of police, where it resulted in the death of a person, was always subject to particular scrutiny and too ready an exclusion of relevant information from the coronial brief of evidence would be inconsistent with that intent. The Attorney General also contended in effect that the default position in the legislation was that the material should be available to the public, having regard to ss 47, 65 and 74 of the Coroners Act.

39. In relation to the relevance of tailored orders, it was noted that a number of authorities directly support the proposition that the availability of other kinds of orders was relevant to the assessment of public interest immunity claims at common law.

40. The Attorney General submitted in summary that, in respect of each of the categories of information in relation to which the Coroner rejected the Commissioner’s claims for public interest immunity at [137], [161], [186], [198], [200] and [212], her Honour did engage in a balancing exercise on a fair reading of the reasons, as demonstrated by use of expressions such as: information was “not so confidential” that it could not be appropriately protected by tailored orders or dealt with in other ways; matters “weighing heavily against making a public interest immunity declaration”; and information being “sufficiently sensitive to warrant protection by way of a suppression order”. It was also submitted that the Coroner’s reasons showed that she did not simply find that potential or conceivable relevance to the enquiries was sufficient to reject the public interest immunity claims. In that regard, it was contended that the Coroner’s comments as to the value of information to the inquiry demonstrated that her Honour did not view mere relevance to be sufficient. Rather, it was submitted that in each case the Coroner found that so long as suitable protective orders were made, the public interest in disclosure outweighed the public interest in confidentiality and therefore provided grounds for denying the public interest immunity claim.

41. In addition, it was submitted that the investigative nature of the Coroner’s task meant that it was not possible to assess public interest immunity claims in the same manner as in adversarial litigation conduct on the basis of a set of issues defined by pleadings, for a number of reasons. First, there were difficulties in ruling that particular matters were outside the scope of the inquest in the present case and her Honour could not form the view that any of the information in question was irrelevant. Secondly, because of the investigative nature of the task and the subject matter, the fact that information was included by police assisting the coronial investigation as relevant was an indicator of the value and importance of the information in a way not available in adversarial proceedings.

42. The Attorney General submitted in effect that, although the Coroner did not generally seek to address the probative value of the information or its degree of importance to the inquest beyond identifying its potential relevance, her Honour was not required to do so for the purposes of determining the public interest immunity claims. This was because it was concluded that any harm flowing from disclosure could be addressed by appropriate tailored orders and attempting to determine the degree of relevance at the stage the inquest had reached would likely have proved impossible. In this regard, the Attorney General emphasised in his submissions that her Honour did not adopt the approach that conceivable relevance led necessarily to a refusal of the public interest immunity claim. Rather, it was submitted her Honour only reached that conclusion after having made an assessment that confidentiality in the sense of the risk of harm from disclosure as being low and concluding that tailored orders could adequately protect against that risk of harm.

43. The Attorney General also submitted that, if the Commissioner’s position was accepted, then there would have to be a rolling assessment of public interest immunity claims. It was submitted that there were conceptual and practical problems with such an approach which were elaborated upon.

Consideration

Common law principles of public interest immunity apply

44. In the present case, it was accepted by the parties that the common law principles relating to public interest immunity applied to the Coroner’s decision of 17 December 2021. This was correct.

45. Section 58 of the Coroners Act relevantly provides:

“58 Rules of procedure and evidence

(1) A coroner in coronial proceedings is not bound to observe the rules of procedure and evidence that are applicable to proceedings before a court of law.

…”.

46. The definition of “coronial proceedings” is found in s 46 as follows:

46 Meaning of “coronial proceedings”

(1) In this Act, coronial proceedings are any proceedings conducted by a coroner or assistant coroner for the purposes of this Act concerning the investigation of a death, suspected death, fire or explosion.

(2) Without limiting subsection (1), coronial proceedings include the following—

(a) the holding of an inquest or inquiry,

…

(c) proceedings of an interlocutory or similar nature (including proceedings to deal with evidential matters or case management issues).

…

47. Thus, by virtue of s 46(2)(a) and (c) and s 58(1), the rules of evidence, including the Evidence Act 1995 (NSW), did not apply in relation to the Commissioner’s claims for public interest immunity because the determination of those claims occurred in proceedings that were of an interlocutory nature dealing with evidentiary matters and case management issues in relation to an inquest and were thus “coronial proceedings” as referred to in s 58(1).

48. In addition, s 58(1) is not to be construed as abrogating the application of public interest immunity in coronial proceedings because:

1. public interest immunity is a substantive principle of common law and is not simply a rule of evidence: R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 at [84] (McColl JA, Hislop J agreeing); Commissioner of Police, New South Wales v Guo [2016] FCAFC 62 (Guo) at [6]‑[14] (Collier J), [61]-[62] (Robertson and Griffiths JJ); and

2. it is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment: Baker v Campbell (1983) 153 CLR 52 at 117 (Deane J); [1983] HCA 39; Guo at [62].

Public interest immunity principles

49. Generally, the common law principles in relation to public interest immunity were not in dispute in these proceedings although they were not elaborated upon by the parties to any great extent.

49. In Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, Gibbs ACJ said at 38‑39:

“The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer, as follows:

There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer, 'the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it'. In such cases once the court has decided that 'to order production of the document in evidence would put the interest of the state in jeopardy', it must decline to order production.”

51. If a claim of public interest immunity is successful, the documents or information need not be produced to the court and the documents or information are not available to be, and cannot be, adduced in evidence or relied upon by the court: HTv The Queen (2019) 269 CLR 403; [2019] HCA 40 (HT v The Queen) at [29] (Kiefel CJ, Bell and Keane JJ), [71]-[72] (Gordon J); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [148] (Hayne, Crennan, Kiefel and Bell JJ). Consequently, in coronial proceedings, if a claim for public interest immunity in relation to documents proposed to be included in the coronial brief of evidence is upheld, the documents will not be included in the brief of evidence and will not be available to the Coroner conducting the inquest or to any interested parties.

52. The categories of documents or information that attract the operation of public interest immunity are not closed but there are various well recognised categories which have been helpfully identified recently by Abraham J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552 (Roberts-Smith (No 14)) at [17]. Relevantly for the present case, one such category is documents or information relating to sensitive police methodologies, capabilities, resources, policies and procedures. This category attracts public interest immunity because preventing disclosure of such documents or information is essential to promoting and maintaining the public interest in the detection and prevention of crime and in maintaining the safety of the community and individuals. In Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 (AG v Stuart) at 675-676, Hunt CJ at CL (Smart and Studdert JJ agreeing) observed that:

“…[The] rationale [for the identity of police informers attracting public interest immunity] is that, if the identity of the informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime …. There is an exception to the rule, in that disclosure of the identity of the informer will be ordered when required to establish innocence of an accused person ….

This particular public interest in protecting the identity of police informers appears to be part of a broader public interest, the maintenance of social peace and order …. As another part of that broader public interest, it is essential that nothing used by police in their pursuit of criminals should be disclosed which may give any useful information concerning continuing inquiries to those who organise criminal activities … or which may impede or frustrate the police in that pursuit…; or which may reveal matters to the prejudice of future police activities ….” (references omitted)

53. Accordingly, the public interest in the detection and prevention of crime and the maintenance of social peace and order so as to protect the community and individuals provides strong support for the non-disclosure of sensitive information concerning police methodologies, capabilities, resources, policies and procedures.

54. On the other hand, it must also be accepted that there is a public interest in the administration of justice by way of a coronial inquest not being frustrated by the withholding of documents or information which must be disclosed if justice is to be done.

55. Where it appears that both aspects of the public interest require consideration, Gibbs CJ explained in Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 at 412 that there is, in effect, a three stage process, whereby the court is required to consider, in a case such as the present:

1. whether harm to the public interest in the prevention of crime and the protection of the community and individuals would be done if the documents or information were disclosed; and

2. whether harm to the public interest in the administration of justice would be done if the documents or information were withheld,

and “when it appears, on the one hand, that damage would be done to the public interest by [disclosing] the documents sought …, and, on the other hand, that there are likely to be documents which contain material evidence”,

3. the court is then required to balance the competing considerations and determine which of those aspects of the public interest predominates, in the sense of whether the public interest supporting the non-disclosure of the documents and information outweighs the public interest in the court performing its functions having access to the documents and information.

56. A number of relevant principles follow from this and can be derived from the authorities in relation to identifying the relevant harm to each aspect of the public interest and carrying out the required balancing exercise.

57. First, the question of whether documents or information may attract public interest immunity so as to require the balancing exercise to be undertaken is to be determined on the basis of unrestricted production or disclosure for the purposes of the proceedings in question since the immunity protects complete, not partial, secrecy: The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34 (The Australian Statistician) at [41] (Steytler P, McLure JA and Newnes AJA).

58. Whether harm to the public interest could arise from disclosure depends on there being a real possibility, as opposed to a probability, of harm and “the incurring of the identified risk [of harm] is itself injurious to the public interest”: Roberts-Smith (No 14) at [15] and the authorities there cited, including The Australian Statistician at [46]. The nature and extent of the harm to the public interest by disclosure of the documents or information are usually assessed having regard to the evidence, both open and closed or confidential, of a senior representative of the relevant entity claiming public interest immunity.

59. Secondly, it is important to identify the particular respect in which the administration of justice would be frustrated if the documents and information are not disclosed. In order to show relevant harm by way of damage or impairment to the court process by non-disclosure, it must be shown that the documents or information are, or are likely to be, material in the sense that there are concrete grounds to believe that disclosure of the documents or information would materially assist given the nature of the issues in the proceedings: AG v Stuart at 675-6 and 681, Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 at [49] (Colvin J); Alister v The Queen at 412. This can be seen as reflecting the same underlying rationale which supports the principle, in both criminal and civil proceedings, that access to documents produced to a court under subpoena or notice is not permitted unless it is shown that (i) there is a legitimate forensic purpose for access, and (ii) it is “on the cards” that the documents will materially assist the case: R v Saleam [1999] NSWCCA 86 at [11] (Simpson J, Spigelman CJ and Studdert J agreeing). This same rationale also provides support for the principle that a subpoena may be set aside if it is not issued for a legitimate forensic purpose and it cannot be seen that the documents sought to be produced will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Secretary v Blacktown City Council) at [65] (Bell P, Brereton and McCallum JJA agreeing). In all cases, the essential enquiry is the extent to which the documents and information will, or are likely to, materially assist on an identified issue in the proceedings, not mere potential or conceivable relevance assessed with or without reference to the issues in the proceedings.

60. Consequently, in order properly to assess the nature and extent of prejudice to the administration of justice if the documents or information are not disclosed, it will generally be necessary for the issues in the proceedings to be identified with some degree of particularity having regard to the nature of the proceedings in question. If it is not established that the documents or information are material in the sense identified, then a court is not required to proceed to the third stage and weigh the competing public interests: Alister v The Queen at 412.

61. Therefore, the integers that are to be balanced or weighed are, on one side of the scales, the harm or damage that would be done to the public interest by disclosure and, on the other, the harm done to the public interest in the administration of justice by withholding documents which are, or are likely to be, material to determining identified issues in the proceedings.

62. Thirdly, if the balancing process is required to be carried out, which public interest will predominate in the particular case must be determined by reference to the circumstances of that case and there can be no statement of general application as to which should predominate in any particular case: AG v Stuart at 676 citing Sankey v Whitlam at 38-9 and Alister v The Queen at 453.

63. Fourthly, if a claim for public interest immunity is upheld, this will not involve a denial of procedural fairness in relation to the substantive proceedings. Since the documents protected by public interest immunity are not to be produced, they are not available to the parties or to the decision maker and the decision maker cannot rely on them in reaching any decision. It follows that there is no question of relevant procedural unfairness: HT v The Queen at [29], [32]. In this way, the public interest immunity procedure respects common law principles of natural justice: HT v The Queen at [32].

64. Similarly, upholding a claim for public interest immunity does not lead to any curtailing of the principles of open justice in relation to the substantive hearing. Since the sensitive information in the documents protected by public information immunity will not be available to be adduced in evidence, to be the subject of submissions or to be a basis for decision, there will be no need for there to be any restrictions, on account of the sensitive contents of the documents, in respect of the hearing being in public or the evidence, the submissions, the findings or the reasons being made public.

65. Fifthly, in undertaking the balancing exercise, the effectiveness or appropriateness of disclosure limitations, for example by the imposition of suppression, non-publication or restricted access orders, may be a relevant factor: The Australian Statistician at [41], [47]. It is an error, however, to determine that there would be no harm to the public interest by disclosure subject to disclosure limitations and, as a result, fail to carry out the balancing exercise: The Australian Statistician at [45].

66. Furthermore, in the course of its judgment in The Australian Statistician, the Western Australian Court of Appeal commented on the less than completely satisfactory nature of disclosure limitations as a means of eliminating or significantly reducing harm to the public interest flowing from disclosure, at [49]-[54], as follows:

“49 A panoply of orders can be made in the litigation process to protect relevant and admissible confidential information. In formulating appropriate orders, it needs to be borne in mind that the confidential information will or may need to be communicated not only to lawyers for the parties but witnesses, including expert witnesses, and will or may be referred to during the trial and in the reasons for judgment. The usual confidentiality orders would limit disclosure to specified persons or classes of persons (lawyers, experts etc) and impose confidentiality obligations on the recipients of the information. Steps would also need to be taken to suppress confidential information adduced in evidence at trial and in reasons for judgment. The intention of those orders is to limit the scope of disclosure and seek to limit the wider (and uncontrolled) dissemination of the information. That intention can be frustrated at a number of levels.

50 There is the risk of inadvertent disclosure by counsel or solicitors to their client and its witnesses, including expert witnesses. This risk was recognised in Jackson v Wells [(1985) 5 FCR 296] (307 - 308). There is also the risk of inadvertent communication during the course of the trial of confidential information which unknown to the lawyers is capable of identifying the respondents. This risk is significant in this case. The persons with the information (counsel, solicitors and the court) may not have sufficient knowledge to accurately assess whether particular information is capable of identifying a respondent.

51 There is the potential for other difficulties. Counsel and solicitors may from knowledge gained in preparing for trial or from their own investigations be able to identify the respondents who provided the confidential information. There is nothing in the orders made by the primary judge which would prevent the lawyers from subpoenaing the respondents to adduce any relevant evidence, oral or documentary.

52 Confining production of information to counsel and solicitors (even with associated orders which were not made in this case) is not a complete or necessarily satisfactory protection of the public interest in the confidentiality of the information. Further, we are not here concerned solely with the public interest in preserving confidentiality. There is the further public interest in maintaining the trust and confidence of respondents and the proper and efficient workings of the Statistician and the ABS.

53 Mr Harper gave evidence (set out earlier) that disclosure of the information in question to legal representatives entailed a real risk of harm because of perceptions of survey respondents. … Although limited disclosure may in appropriate circumstances reduce the risk of harm to an extent that materially influences the balancing exercise, this is not such a case.

54 We are satisfied that there is no evidentiary foundation for the primary judge's finding that there was no, or only a slight, risk of harm to the public interest [as a result of the limited disclosure orders]. The evidence established that there was a real risk of significant harm to the proper workings of the Statistician and the ABS.”

67. The non-disclosure orders in The Australian Statistician apparently limited disclosure to the Court, counsel and solicitors. Where disclosure is permitted to a wider range of persons including expert witnesses and interested lay persons whose understanding of court orders and the obligation to comply with them may not be as fully developed as that of counsel and solicitors, the risks and difficulties involved in using suppression, non-disclosure and limited access orders in an attempt to eliminate or significantly reduce the risk of harm to the public interest by disclosure will naturally be even greater than those discussed in The Australian Statistician.

68. In addition, if a claim for public interest immunity is rejected on the basis that suppression or non-disclosure orders will eliminate or significantly reduce the risk of harm to the public interest from disclosure, so that the harm to the public interest from non-disclosure outweighs the harm to the public interest from disclosure, difficult questions relating to procedural fairness and open justice arise. This is because the documents and information will be available to the decision maker and may be used in making findings which must be explained in the decision maker’s reasons. The decision maker will have to determine in respect of which issues the parties are entitled to be accorded procedural fairness and whether that can be accommodated without substantially undermining the effectiveness of the tailored orders. In addition, the decision maker will have to determine the extent to which the principles of open justice are to be curtailed in relation to publication of the evidence, submissions, findings and reasons and whether this will undermine the effectiveness of the suppression and non-publication orders in eliminating or minimising the risk of harm to the public interest arising from disclosure.

69. Finally, when balancing of the competing public interests, the balance struck may differ depending on the nature of the proceedings in question: HT v The Queen at [33]. Thus, it has been held that in criminal proceedings the scales involved in balancing process may swing in favour of disclosure if the documents or information are necessary to support the defence of an accused person: Alister v The Queen at 414; Sankey v Whitlam at 42.

70. One of the situations where the balance will swing in favour of disclosure in a criminal prosecution is if the liberty of the subject is at stake. In civil or coronial proceedings the liberty of the subject is rarely, if ever, directly at stake. Accordingly, the balance is less likely to swing in favour of disclosure in those types of proceedings to the same extent as in a criminal prosecution.

71. Another reason why the balance might swing in favour of disclosure in criminal prosecutions can be seen in an observation by Lord Mance (with whom Lady Hale agreed) in Al Rawi v Security Service [2012] 1 AC 531; [2011] UKSC 34. At [101], his Lordship noted that “[i]f he Crown still does not wish to disclose the material, it can and must forgo further prosecution”. A similar observation was made by Gordon J in HT v The Queen at [71]. Thus, in criminal proceedings, the public interest in non-disclosure can be vindicated, even if disclosure is ordered, by termination of the prosecution. For similar reasons, where the person or body claiming public interest immunity has control or substantial influence over whether the proceedings in which the claim is made continue and consequently whether the documents or information will be disclosed, this may be a factor weighing in favour of disclosure. That factor does not apply in a coronial inquest which must be conducted, by virtue of ss 23(1)(a) and 27(1)(b) of the Coroners Act.

67. In relation to the balancing exercise in civil proceedings, Abraham J observed in Roberts-Smith (No 14) at [16]:

“…by contrast, in civil proceedings the ‘interests of a litigant seeking to vindicate private rights’ will rarely prevail over an important public interest such as the protection of Cabinet confidentiality or national security: see Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 (Commonwealth v Northern Land Council) at 618. This is so notwithstanding that the consequence of upholding the claim of public interest immunity may be that a party is ‘handicapped’ in the conduct of his or her case, or even that the case is doomed to fail: see, [Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4] at [5], and [24].”

73. In light of these principles, it is appropriate at this point to consider the nature of coronial proceedings in more detail since it may be relevant to both the identification of harm to the public interest as a result of non-disclosure and the balancing exercise in relation to a claim for public interest immunity.

The nature of coronial proceedings

74. Coronial proceedings are not criminal or civil inter partes proceedings. The proper characterisation of coronial proceedings will depend principally on the statute under which they are conducted. Given the similarities between the 2009 Coroners Act and previous New South Wales legislation dealing with the same subject, it can be accepted that coronial proceedings under the Coroners Act involve the administration of justice and the exercise of judicial power, and they are a hybrid process containing both adversarial and inquisitorial elements: Musumeci v Attorney General of NSW (2003) 57 NSWLR 193; [2003] NSWCA 77 at [33] (Ipp JA, Beazley JA agreeing).

75. Relevant provisions of the Coroners Act provide a more detailed understanding of the intention of the legislature in relation to the nature and conduct of coronial proceedings.

76. The objects of the Coroners Act are set out in s 3 and include:

“(c) to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths,

…

(e) to enable coroners to make recommendations in relation to matters in connection with an inquest or inquiry (including recommendations concerning public health and safety and the investigation or review of matters by persons or bodies)”.

77. The functions of the State Coroner and Deputy State Coroner are found in s 10 of the Coroners Act and include “to ensure that all deaths … concerning which a coroner has jurisdiction to hold an inquest or inquiry are properly investigated”: s 10(1)(b).

78. Sections 23 and 27 relate to the Coroner’s jurisdiction and together establish that an inquest concerning a death must be held if it appears that the person has died as a result of police operations. Sections 23 and 27 relevantly provide as follows:

“23 Jurisdiction concerning deaths in custody or as a result of police operations

(1) A senior coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that the person has died…—

…

(c) as a result of police operations, or

…

(2) In this section—

police operation means any activity engaged in by a police officer while exercising the functions of police officer other than an activity for the purpose of a search and rescue operation.

…

27 General circumstances in which inquest required to be held

(1) An inquest concerning the death or suspected death of a person is required to be held in any of the following circumstances—

…

(b) if the jurisdiction to hold the inquest arises under section 23,

…”.

79. A number of sections in the Coroners Act give more specific insight into the way in which coronial proceedings are to be conducted. These are referred to in the paragraphs which follow.

80. Section 46 sets out the definition of “coronial proceedings” and has been quoted above. The interlocutory proceedings conducted by the Coroner in the present case in relation to the Commissioner’s public interest immunity application in the present case fall within that definition of “coronial proceedings”.

81. Section 47 of the Coroners Act establishes the general position that coronial proceedings should be open to the public but with the coroner having a discretion to conduct a hearing that is not open to the public in “special circumstances”. Section 47 provides:

“47 Hearings in coronial proceedings generally to be open to public

(1) Any hearing conducted in coronial proceedings is to be open to the public, except as provided by this section and section 74.

Note—

See also section 74 for situations in which a coroner may order all or any persons to go and remain outside the room or building in which coronial proceedings are being heard.

(2) Nothing in subsection (1) prevents a coroner hearing coronial proceedings in a room or building that is not open to the public (such as a room or building in a correctional centre, hospital, private residence or other place not normally open to the public) if the coroner is of the opinion that special circumstances make it necessary or desirable to do so.

…”.

82. Section 49 empowers a coroner in coronial proceedings to give directions and, in particular, subs (1) is in the following terms:

“(1)  Subject to any relevant practice notes, a coroner in coronial proceedings may give such directions as the coroner thinks fit for the speedy determination of the real issues with which the proceedings are concerned.

83. From s 49(1) it is evident that coronial proceedings are intended generally to be confined to determining the “real issues with which the proceedings are concerned”. In civil and criminal proceedings, the issues are usually determined by the parties, for example by the pleadings in a civil case or by the plea and the process described in s 141 of the Criminal Procedure Act 1986 (NSW) in a criminal prosecution on indictment. In coronial proceedings, the issues cannot be identified in a similar way because there are no pleadings or process similar to that in s 141 and the proceedings are not an adversarial contest between opposing parties. As a consequence, identifying the “real issues” for the purposes of s 49(1) falls to the coroner. In a case such as the present, this task can be undertaken in light of the material in the coronial brief of evidence in relation to which no claim of public interest immunity is made and any other relevant material. Identifying the “real issues” at an early stage of proceedings is essential if directions under s 49(1) are to be made.

84. The persons who are entitled to be represented in coronial proceedings are specified in s 57, which relevantly provides:

“(1) The coroner in coronial proceedings may grant leave to any person, who in the opinion of the coroner has a sufficient interest in the subject-matter of the proceedings, to appear in person in the proceedings or to be represented by an Australian legal practitioner.

(2) Any person granted such leave may examine and cross-examine any witnesses on matters relevant to the proceedings.

(3) A coroner holding an inquest concerning the death or suspected death of a person must grant leave under subsection (1) to any person who is a relative of the deceased person (or suspected deceased person) unless the coroner is satisfied that there are exceptional circumstances that justify the coroner refusing leave.

…”.

85. It can be noted that neither s 57 nor any other section of the Coroners Act expressly entitles any “interested party” granted leave under s 57 to make submissions. In Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, the High Court considered the nature and extent of the rights of family members of the deceased, who were given leave by a coroner under a provision similar to s 57, to make submissions. The majority, Mason CJ, Deane and McHugh JJ held, at 600-1, that the provision in that case did not exclude the rules of natural justice and as a result the coroner could not lawfully make any finding adverse to their interests without first giving them the opportunity to make submissions against the making of such findings. It was, however, said that the requirement to afford procedural fairness in this way to the relatives did not extend to allowing them to make submissions on all issues in the coronial proceedings. At 601, the majority went on to say:

“It needs to be stressed that, although the appellants [the family members of the deceased] are entitled to make submissions concerning matters which are identified as a possible source of adverse findings concerning their interests, they have no right to make submissions on the general subject matter of the inquest. Their legal entitlement is confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased. This does not mean that their submissions must be perfunctory or limited to assertions or denials. In opposing the making of any adverse finding, the appellants are entitled to put every rational argument open on the evidence and, where necessary, to refer to and analyse the evidence to support that argument.”.

In addition, the majority said, at 603, that the contention that the grant of the right to appear gave the relatives a general right to be heard on the subject matter of the inquiry should not be accepted.

86. As already noted, s 58(1) provides that a coroner in coronial proceedings is not bound by the rules of procedure and evidence that are applicable to proceedings before a court. Nonetheless, subs (2) of s 58 expressly preserves the privilege against self-incrimination and self-exposure to a civil penalty in such proceedings. In addition, for the reasons given above, public interest immunity, as well as legal professional privilege, have not been abrogated in coronial proceedings.

87. Under s 59, witnesses in coronial proceedings may be examined on oath or affirmation. Section 60(1) provides that a person granted leave to appear or be represented in coronial proceedings may apply to the coroner to have a particular person examined in the proceedings. By virtue of s 62, a person who appears to give evidence or produced documents must not, without lawful excuse, refuse to be examined on oath or affirmation, or refuse to answer “any question relevant to the subject matter of the proceedings”.

88. In relation to documentary evidence in coronial proceedings, s 63 provides:

“Parts 3 and 4 of Chapter 6 of the Criminal Procedure Act 1986 apply to and in respect of any coronial proceedings in the same way as they apply to and in respect of proceedings before a court, and any function exercisable by an authorised person under those Parts may, for the purposes of coronial proceedings, be exercised by a coroner.”

89. Under s 65(1), a coroner in coronial proceedings is to ensure that witness’s evidence is recorded. Access to the coroner’s file may be granted to any person under s 65(2) if the coroner is satisfied that it is appropriate for the person to be granted access to the file and the appropriate fee is paid. In that regard, subs (3) provides:

“(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.”

90. As can be seen, s 65(3)(a) gives emphasis to the principle that coronial proceedings should generally be open to the public.

91. A coroner may issue a subpoena to appear and be examined, to produce a document or thing or both, under s 66. Subsection (4) of that section provides:

“(4) A person is not bound to produce any document or thing—

…

(b) that the person would not be bound to produce on a subpoena for production in the Supreme Court.”

92. It is well settled that a person would not be bound to produce on a subpoena for production in the Supreme Court if the subpoena lacked a legitimate forensic purpose or it was not established that it was likely that the documentation sought would materially assist on an identified issue in the proceedings, or there is a reasonable basis beyond speculation that it is likely, or “on the cards”, the documentation would do so: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (ICAP) at [8], [9], [14], [22] (Tobias JA, Basten JA and Handley AJA agreeing); Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 at [30]-[32] (Macfarlan JA, Button and Ierace JJ agreeing); Secretary v Blacktown City Council at [65].

93. Having regard to the relevant principles applicable in the Supreme Court, it can be seen that s 66(4)(b) evinces a legislative intent that coronial proceedings be conducted on the basis that there are “identified issues” against which the legitimate forensic purpose of a subpoena and the materiality of the documentation sought can be assessed. If it were not so, production of documentation under a subpoena issued under the Coroners Act could not be challenged on the basis that the documentation would not materially assist on an identified issue, or that there was no reasonable basis beyond speculation that it was likely, or “on the cards”, the documentation would do so.

94. Part 6.4 of the Coroners Act, ss 73 to 77, deals with disclosure of information. Most relevantly, s 74 empowers a coroner in coronial proceedings to conduct a closed hearing and to prevent publication of evidence or submissions. For this purpose, “published” is defined in s 73 as including being inserted in a newspaper, publicly exhibited, broadcast by radio or television and published on the internet.

95. Section 74 relevantly provides:

“(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,

…

(c) national security,

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

…”.

96. It was not in dispute in these proceedings that, in addition to the powers in s 74(1)(b) and (c), a coroner in coronial proceedings has an implied power to make suppression and restricted access orders.

97. The functions of a coroner holding an inquest concerning the death of a person include making findings as required by s 81(1) which is relevantly in the following terms:

“(1) The coroner holding an inquest concerning the death … of a person must, at its conclusion …, record in writing the coroner’s findings … as to whether the person died and, if so—

(a) the person’s identity, and

(b) the date and place of the person’s death, and

(c) in the case of an inquest that is being concluded—the manner and cause of the person’s death.”

98. In addition, under s 82, the coroner may make recommendations:

“(1) A coroner … may make such recommendations as the coroner … considers necessary or desirable to make in relation to any matter connected with the death … with which an inquest or inquiry is concerned.

(2) Without limiting subsection (1), the following are matters that can be the subject of a recommendation—

(a) public health and safety,

(b) that a matter be investigated or reviewed by a specified person or body.

(3) The record made under section 81 is to include any recommendations made by the coroner…. The record must not indicate or in any way suggest that an offence has been committed by any person.

(4) The coroner is to ensure that a copy of a record that includes recommendations made under this section is provided, as soon as is reasonably practicable, to—

(a) the State Coroner (unless the coroner is the State Coroner), and

(b) any person or body to which a recommendation included in the record is directed, and

(c) the Minister, and

(d) any other Minister (if any) that administers legislation, or who is responsible for the person or body, to which a recommendation in the record relates.”

99. In regard to the findings under s 81 and recommendations under s 82 (which sections are not materially distinguishable from the corresponding provisions of the Coroners Act 1980 (NSW), ss 22 and 22A respectively), it has been held that it was an error to proceed on the basis that the primary duty in a coronial inquest is to make recommendations: X v Deputy State Coroner for New South Wales (2001) 51 NSWLR 312; [2001] NSWSC 46 at [59] (O’Keefe J). The primary duty of a coroner conducting an inquest is to determine and record if a death has occurred and, if so, the identity of the deceased, the date and place of the death and the manner and cause of such death and it is important that extraneous factors do not get in the way of that primary duty: Conway v Jerram, Magistrate and NSW State Coroner [2011] NSWCA 319 (Conway) at [47] (Young JA, Campbell JA agreeing). The inclusion of par (e) in s 3 of the Coroners Act, which establishes that one of the objects of that Act is to enable coroners to make recommendations in relation to matters in connection with an inquest, does not, in my view, indicate a legislative intent to change the primary duty of a coroner conducting an inquest as referred to in Conway and the object in s 3(b).

100. In particular, it can be noted that the Court of Appeal in Conway, at [31], did not find any substantive reason to doubt the applicability of the remarks of Barr AJ at first instance in Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner (2010) 78 NSWLR 689; [2010] NSWSC 371 at [53]-[56] which were as follows :

“53 Nevertheless, in construing the expression “manner of death” in a broad way, the court must bear firmly in mind the limits to the coroner’s jurisdiction. In 1826 [sic, 1597] Lord Bacon wrote this in his Maxims of the Law, Regula I-

‘It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.’

54 In Harmsworth v State Coroner [1989] VR 989 Nathan J was concerned about the limits of the Victorian Coroners jurisdiction to consider the circumstances of the death of a number of deceased persons, and particularly how death occurred. There had been a fire at a gaol in Victoria and a number of inmates had died. His Honour said this at 995-996-

‘The coroner's source of power of investigation arises from the particular death or fire. A coroner does not have general powers of enquiry or detection (see s15(1) and s17(1)). The enquiry must be relevant, in the legal sense to the death or fire, this brings into focus the concept of remoteness". Of course the prisoners would not have died, if they had not been in prison. The sociological factors which related to the causes of their imprisonment could not be remotely relevant. This can be tested by considering how wide, prolix and indeterminate the inquest might be if each of the many facets of the individual personalities, of all those involved were to be considered. A coroner would be confronted with a need to enquire into the personal peculiarities of all of the prisoners who barricaded themselves in. Both those who relented and those who did not. Whether for example, one group or person suborned others, and if so why and how. The personalities of all of the prison officers who interacted with all of the prisoners could also be investigated. Even the interaction of all of the other prisoners at any time in Jika with the deceased. Such an inquest would never end, but worse it could never arrive at the coherent, let alone concise, findings required by the Act, which are the causes of death, etc. Such an inquest could certainly provide material for much comment. Such discursive investigations are not envisaged nor empowered by the Act. They are not within jurisdictional power.

266. For these reasons, I upheld ground 3(a). Accordingly, the Coroner’s order 29, by which the Commissioner’s application was otherwise dismissed, should be set aside in so far as it related to claim for non-disclosure orders in respect of information identifying the different characteristics of the tasers carried by certain officers compared to those carried by general duty officers. There should also be an order in the nature of mandamus requiring the State Coroner or a Deputy State Coroner to reconsider the Commissioner’s claim for non-disclosure orders in respect of that information in accordance with law.

Ground 3(b) Training material

271. Ground 3(b) involved the contention that the Coroner misunderstood the documents listed at items 5A-5C in Amended Revised Schedule B and as result found that they did “n[o] more than to record annual training days of the involved officers in previous years” (at [194]).

Submissions

272. The Commissioner submitted that a claim for public interest immunity had been made in relation to documents and information concerning training undertaken by certain officers, including “Annual Training Schedules” for 2018 to 2021, which were items 5A-5C of the Amended Revised Schedule B before the Coroner. The evidence in support of that claim was said to include pars 37 to 39 of the Assistant Commissioner’s first confidential affidavit and pars 88 to 94 of the second confidential affidavit.

273. It was submitted that the Annual Training Schedule set out details of specialist training activities which revealed the types of weapons and equipment used by officers, and the capabilities of those weapons. It was contended in effect that, the Coroner, at [194], mischaracterised the documents as doing no more than recording annual training days of the officers involved in previous years and this demonstrated that the Coroner either failed to respond to the claim that was advanced by the Commissioner or failed to consider cogent evidence provided in support of that claim. It was contended that, either way, the Coroner erred.

274. The Attorney General referred to the Coroner’s reasoning at [191] and [194] of her reasons and submitted that this involved no error. In particular, it was submitted that the Court should not be “concerned with looseness of language…nor with unhappy phrasing” and that the reason “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”, citing the well known passage from Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 concerning the appropriate approach to the reasons of an administrative decision maker.

Consideration

275. This ground 3(b) raised a similar issue to ground 3(a) but concerned an asserted failure properly to consider evidence rather than a failure to address a substantial and clearly articulated claim. This potential distinction was adverted to in Day v SAS Trustee Corporation [2021] NSWCA 71 by Meagher JA at [37] as follows:

“… a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his “three key issues” were not stated and determined discretely. What he must show is that they raised “substantial” (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant’s claim …”.

276. In Minister for Immigration and Citizenship v SZRKT (2014) 212 FCR 99; [2013] FCA 317, Robertson J said, at [69] and [111]:

“69. The applicant referred to Aronson and Groves Judicial Review of Administrative Action (now the fifth edition (2013) [4.770] at page 264) referring to the cases drawing a line of sorts where the nub of the complaint was that the decision-maker overlooked or profoundly misunderstood material evidence. That line sought to distinguish between overlooking (or misunderstanding) mere items of evidence on the one hand, and overlooking (or misunderstanding) whole categories of evidence on the other hand. The distinction is sometimes expressed as being between failing to understand some evidence, even if it was important, and failing to understand the claim (or an integer of the claim) for which the evidence was adduced. The learned authors say: “This is a difficult distinction to operate in practice, and not always convincingly drawn, but it does make sense.” (footnotes omitted). The authors refer to the reasons in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24]. There Selway J said:

[24] A distinction can be drawn between the claim made by the applicant and the applicant’s evidence in support of that claim. However, it is not a ‘bright line’ distinction. The distinction between evidence supporting a claim, and the claim itself is often difficult to draw even in the context of a judicial proceeding. It is likely to be very difficult in the context of a Tribunal proceeding which is necessarily attended by considerable informality and where applicants rarely have the advantage of legal assistance. Significant aspects of the claim are likely only to be revealed in the evidence or information put before the Tribunal by the applicant. In such circumstances the difference between the claim itself and the evidence supporting it will often be blurred at least where the relevant factual issue involves an essential step in the applicant satisfying the Tribunal that he or she is a refugee: see Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 at [79] per Allsop J (with whom Heerey J agreed) and see discussion of the relevant principles by Weinberg J in Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533.

…

111. In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.”

277. While the cases in the Federal Court concerned administrative tribunals, in my view, the principles stated are also generally applicable in relation to judicial review of decisions of a court such as a coroner’s court. The distinction between a failure to consider a substantial and clearly articulated claim and a failure to consider and properly understand the evidence relied upon in support of such a claim is not clear cut. Nonetheless, a failure to deal with, and properly consider and characterise, substantial and consequential evidence led in support of a clearly articulated claim may, depending on the importance of the material and the seriousness of any mischaracterisation, amount to an error of law and jurisdictional error.

278. The material relied upon in support of the claim for public interest immunity in respect of the Annual Training Schedules for 2018 to 2021, items 5A-5C of the Amended Revised Schedule B before the Coroner, was the evidence of the Assistant Police Commissioner referred to above as well as the Annual Training Schedules themselves. The Coroner apparently accepted the Assistant Police Commissioner’s evidence in support of the public interest immunity claims relating to training documentation, as stated at [185]. As a result, the determination of the Commissioner’s claim for public interest immunity in respect of the Annual Training Schedules depended fundamentally on the contents of those Training Schedules. In other words, the Annual Training Schedules amounted to very substantial and consequential evidence on this claim for public interest immunity.

279. The Coroner’s reasoning in relation to this claim was set out in [185] and [191]-[194] which were as follows:

“185. I can see a basis for distinguishing the specific training documentation and syllabuses marked as red in Amended Revised Schedule B from the information that is marked red in Amended Revised Schedule A where the claim is described as being over training material (or similar). With the exception of the documents described as category 5A – 5C in Amended Revised Schedule B [the Annual Training Schedules], the documentation contained within that schedule is specific and, in particular, would reveal specifically what matters [certain] operatives are (and are not) trained in. I am satisfied that this specific information has the potential to result in harm to future police operations.… I am prepared to make suppression orders over the information in Amended Revised Schedule B other than documents 5A – 5C [the Annual Training Schedules].

…

191. In my view, however, the information described as ‘training’ material in column 4 of Amended Revised Schedule A (or similarly so described) does not need protection, even by way of non-publication orders. That information is generic in nature (simply saying what competencies a particular operative has or has not achieved or what training that operative has undertaken). I cannot infer how the disclosure of this sort of evidence could be harmful. Nor has this been addressed either in evidence or submission. I noted that the submissions made by the Commissioner in this regard focussed more on the asserted irrelevance (as it was contended) of this material to the functions of this Court rather than on the identification of any harm that would result from its disclosure.

192. On this last point I note that, as the involved [certain] officers will not be publicly identified (as a result of order 1), even where the hypothetical future subject of a police operation to be sufficiently diligent to record what training an officer had undertaken, he or she would have no way of identifying that officer and, therefore, of using any gaps in that officer’s training to his or her advantage (and to the disadvantage of future police operations). Therefore, I cannot see how the disclosure of this material will result in any harmful effect or that it possesses the necessary characteristics of confidentiality.

193. In any event, and for completeness, I should indicate that I am not satisfied that all of the information which is described as ‘training’ information (or is similarly so described) in column 4 of Amended Revised Schedule A is indeed information of that character. …

194. For similar reasons, I do not accept that documents described as Category 5A–5C of Amended Revised Schedule B [the Annual Training Schedules] (which do no more than to record annual training days of the involved officers in previous years) needs any form of protection. (As I have already indicated I am satisfied that the remainder of the documents in Amended Revised Schedule B do.)”

280. Particularly from [185] and [194], it is evident that the Coroner’s conclusion that the Annual Training Schedules did not need any form of protection, unlike the other training related documents identified in [185], was primarily, if not entirely, based on her Honour’s assessment that those schedules did “no more than… record annual training days of the involved officers in previous years” and did not “reveal specifically what matters [certain] operatives are (and are not) trained in”.

281. A review of the Annual Training Schedules indicated, however, that they did not simply record the number or dates of annual training days completed by involved officers in previous years. The Schedules revealed specifically what matters certain operatives were (and by implication were not) trained in, contrary to what the Coroner appeared to have found at [185]. Indeed, they disclosed the types of firearms and other weapons and equipment used by officers, and some aspects of the capabilities of those weapons, including ranges at which the officers were trained in using those weapons, ammunition used in the training and the different types of weapons training involved. In addition, the types of drills and team work in which officers were trained were also set out in these documents.

282. Given the contents of the Annual Training Schedules, it did not appear to me that it was open to conclude that they did not reveal specifically what matters certain operatives were (and were not) trained in, at least during the training the subject of those schedules. Furthermore, as a result of my review of the schedules, I was satisfied that the Coroner’s description of them as doing no more than recording annual training days of the involved officers in previous years was so inadequate that the most likely explanation for these conclusions was that there had been a failure to deal with and properly consider and characterise what was, in effect, a most substantial and consequential part of the evidence led in support of the Commissioner’s claim for public interest immunity over the Annual Training Schedules. For these reasons, I was of the view that the Coroner failed to understand substantial evidence in support of, and determine, the claim for public interest immunity actually made by the Commissioner in relation to items 5A-5C of the Amended Revised Schedule B.

283. Counsel who appeared for the Commissioner in the Coroner’s court described the Annual Training Schedules as disclosing “the whole gamut of training activities undertaken by a certain unit in the last three years so really everything …”. It could not properly be said, in my view, that counsel’s description during oral submissions of the contents of the schedules in these general terms was inaccurate or that it could have misled or induced the Coroner into misunderstand the basis of the Commissioner’s claim in relation to the Annual Training Schedules.

284. Furthermore, the seriousness of the mischaracterisation of this material, which was of fundamental importance in determining the claim for public interest immunity, was such that it could not, in my view, be explained as “looseness of language” or “unhappy phrasing”, as the Attorney General submitted.

285. For these reasons, I concluded that the Coroner’s decision to reject the claim for pubic interest immunity in relation to the Annual Training Schedules, items 5A-5C of the Amended Revised Schedule B before the Coroner, in the circumstances involved jurisdictional error or error of law on the face of the record as a result of a failure to understand the evidence in support of, and properly consider, a substantial and articulated claim made by the Commissioner.

286. Thus, ground 3(b) should be upheld and order 29, by which the Commissioner’s application was otherwise dismissed, should be set aside in so far as it related to claim for public interest immunity in respect of items 5A-5C of the Amended Revised Schedule B before the Coroner. There should also be an order in the nature of mandamus requiring the State Coroner or a Deputy State Coroner to consider the Commissioner’s claim in respect of that information according to law.

Ground 3(c) automated welfare checks

287. Ground 3(c) concerned the Commissioner’s claim for protective orders in relation to the automated welfare check system of the New South Wales Police Force which was rejected by the Coroner at [279]-[281].

Submissions

288. The Commissioner submitted that the Commissioner had made a claim for non-publication in relation to the automated welfare check function of the NSW Police supported by evidence from the Assistant Police Commissioner explaining the risk which would arise if the information were disclosed including officers’ lives being put at risk. It was contended, in effect, that the Coroner’s finding that the evidence did not support the claim was not made by reference to the evidence in question. Further at the hearing, the Commissioner submitted that the Coroner’s statement that her Honour could not understand how harm may arise was an error as it failed to consider how it may arise, regardless of whether she accepted it would.

289. The Attorney General submitted that the Coroner decided the matter on the evidence before her Honour, and that it was not necessary for her to make specific reference to the particular paragraphs of the relevant affidavit, in circumstances where it was clear that regard was had to Assistant Commissioner’s evidence which formed the basis of the Commissioner’s claim and that evidence had been specifically raised by counsel for the Commissioner at the hearing.

290. In oral submissions, the Attorney General emphasised that in assessing whether the Coroner failed to deal with the claim, it was important to have regard to how the claim was put before her Honour. It was submitted that the claim was put in a narrower way in the Coroner’s court compared to the way it was advanced by the Commissioner in this Court.

Consideration

291. The claim for non-publication orders in relation to the automated welfare check function of the NSW Police was made in par 43(j) of the Commissioner’s submissions of 27 July 2021, par 44(i) of the submissions of 1 September 2021 and par 22 of the Aide Memoire. The Assistant Police Commissioner’s evidence in support of this ground was found in his first and second confidential affidavits. That evidence included an explanation of what was involved in automated welfare checks and the Assistant Commissioner’s view that the checks played an important role in ensuring officer safety in frontline policing. In addition, there was evidence that “similar orders were made by the [Coroners] Court” in another identified coronial inquest “and the Court made correlative redactions concerning that information in the published findings.”

292. Her Honour’s reasons in relation to this claim were as follows:

“279. The submissions made in support of the claim made in respect of this information [relating to automated welfare checks] were, in effect, that there would be a concern that a ‘would be offender’ with knowledge of how the police system works, could potentially use that to his or her advantage in order to give the impression that the officers in the field are not in harm’s way.

280. In the aide memoire, it is clarified that the harm that has been identified arises from the automatic prompts to check officer welfare via the CAD system and at the time interval at which those checks are conducted

281. On the material that has been provided to me, I simply cannot understand how, were information to be disclosed as to the time interval between automatic checks, this could be of use to any ‘would be offender’ or would be detrimental to future police operations. The evidence and material provided in support of this claim does not justify me making the orders that have been sought and I decline to make these orders.”

293. There is no reason to doubt that her Honour’s conclusion to the effect that she could not understand how disclosure of the information could lead to relevant harm was based “[o]n the material that has been provided to [her]” which included the Assistant Commissioner’s evidence.

293. I understood the statement in [281] that the Coroner “simply cannot understand how, were information to be disclosed … this would be detrimental to future police operations” to be an attempt to express the conclusion that, even accepting the Assistant Commissioner’s evidence and taking into account the submissions, her Honour did not accept that it had been established that there would be any relevant risk of harm from disclosure of the information. That this was so was confirmed by the statement that “[t]he evidence and material provided in support of this claim does not justify me making the orders that have been sought”. On my review of the evidence and submissions, I was satisfied that it was open to the Coroner to conclude that the material did not establish that there would be a relevant risk of harm from disclosure.

294. For these reasons, I rejected the submission that the Coroner’s findings were not made by reference to the evidence in question. In my view, her Honour considered the evidence and submission in support of the claim and reached a conclusion, that was open to her, based on that material. There was no error in this aspect of the Coroner’s decision as contended under ground 3(c) and I rejected that ground of review.

295. Notwithstanding that conclusion, if there were further material available to the Commissioner which explained, for example, how the risk of harm from disclosure of the automated health check information might arise, she would not be precluded from bringing a further application for a non-disclosure order in respect of that information.

Conclusion and orders

297. In summary, the Commissioner has been successful on grounds 1(a) and (b) and grounds 3(a) and (b) but unsuccessful on grounds 1(c), 2 and 3(c).

298. As noted above, given the complexity in identifying the information and orders of the Coroner which were affected by each of the grounds of review and the overlap between them, the parties were in agreement that I should hand down my judgment dealing with each ground of review and then stand the matter over to allow the parties to consider the reasons and reach agreement, if possible, or make submissions as to the appropriate form of proposed orders to give effect to this judgment.

299. Also as noted above, the parties should also be given the opportunity to agree or make submissions on any redactions to this judgment and any final suppression or non-publication orders appropriate for these proceedings.

300. Accordingly, this judgment, without the addendum, was provided to the parties but not otherwise published on 16 May 2022 and on that day the Court made the following orders:

1. On or before 23 May 2022, the plaintiff and the first defendant are to confer with a view to agreeing on:

1. proposed orders appropriate to give effect to this judgment; and

2. proposed final suppression or non-publication orders or redactions in respect of this judgment and the evidence and material before the Court on this application.

2. Any agreed short minutes of proposed orders are to be sent to the Associate to Wright J on or before 24 May 2022.

3. In the event that no agreement can be reached in relation to proposed orders, the plaintiff and the first defendant are to file and serve written submissions in relation to the proposed orders (not exceeding, without leave, five pages in length) together with the proposed orders on or before 24 May 2022.

4. The proceeding are listed for directions on 25 May 2022. at 9.30am.

5. The parties have liberty to apply on 2 days’ notice.

Addendum

301. In accordance with the orders made on 16 May 2022, the parties provided proposed orders and there was a short hearing on 25 May 2022. As a result of that hearing, revised proposed orders were prepared. The parties agreed that revised proposed orders 1 to 5 reflected the conclusions reached in this judgment and I accepted this this was so. Nonetheless, in case there were some unanticipated difficulty or mistake, in order 9 I granted liberty to apply so that such matters could be dealt with, if need be.

302. In addition, the Commissioner sought, and the Attorney General did not oppose, the making of final suppression and non-publication orders in the terms of revised proposed orders 6 to 8. I was satisfied that order 6 was necessary to prevent prejudice to the proper administration of justice because disclosure or publication of the information identified in that order would effectively destroy the subject matter of the judicial review proceedings in this Court which were designed to protect that information from disclosure or publication. In addition, given the nature of the information and the potential for its disclosure or publication to compromise the safety of police officers or the community, I accepted that suppression and non-publication orders were necessary to protect the safety of those persons and persons in the community generally.

303. The Commissioner had, on 25 May 2011, initially proposed that the duration of such orders should be 99 years. This was put on the basis that the relevant police methodologies and other information had not changed markedly in the last 50 years and it was not anticipated that they would be likely to change in the foreseeable future. In the circumstances and in order to limit the duration to the shortest appropriate time limit, it appeared to me that the orders should be limited to 50 years or until further order of the Court.

304. Finally, given the sensitive nature of the information and the prospect of wide dissemination across Australia if the information were disclosed or published, it was appropriate in my view for the suppression and non-publication orders to apply throughout the Commonwealth.

305. Accordingly, the final orders in this matter made on 27 May 2022 were as follows:

1. An order in the nature of certiorari setting aside:

1. so much of order 7(d)-(e) made on 1 February 2022 as concerns orders 3, 4, 5 and 6 made on the same day;

2. orders 8, 9, 14(d)-(e) and 14A made on 1 February 2022;

3. so much of order 29 made on 1 February 2022 as it relates to the Plaintiff’s claims for public interest immunity in respect of the contested information identified in the red cells in Confidential Schedules A and B to these orders; and

quashing the decision of the Second Defendant made on 17 December 2021 to the extent that it is reflected in those orders.

2. An order in the nature of certiorari setting aside order 29 made on 1 February 2022 and quashing the decision of the Second Defendant made on 17 December 2021 to the extent that they relate to the application for non-publication orders in respect of the information identified in the orange cells in Confidential Schedule A to these orders.

3. An order remitting the matter to the State Coroner or a Deputy State Coroner for the Plaintiff's claims for public interest immunity and application for non-publication orders in respect of the information identified in orders (1) and (2) to be determined according to law.

4. The Plaintiff's Summons filed on 16 March 2022 otherwise be dismissed.

5. There be no order as to costs.

6. Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the grounds in sections 8(1)(a) and (c) of the Act, and/or in the exercise of the Court's inherent jurisdiction, the Court orders:

1. In relation to the information contained in Confidential Schedules A and B to these orders, tabs 2, 3, 18, 20, 22A, 24, 26, 27, 31, 33, 34, 35, 36, 39, 50, 51, 52 and 55 of the Court Book filed by the Commissioner on 1 April 2022 (MFI 1), tender bundle B (MFI 2) and Exhibit C:

1. subject to sub-paragraph (ii), there is to be no disclosure (by publication or otherwise) of the information contained in those documents, including any part of any submissions referring to that information;

2. the information referred to in sub-paragraph (a) above may be disclosed to the Coroner’s Court, Court staff and officers, the legal representatives of the parties to the application and those assisting the Second Defendant in relation to the Coroner’s Court proceedings.

2. In relation to the information contained in tabs 28, 30, 41, 43, 44 and 54 of the Court Book filed by the Commissioner on 1 April 2022 (MFI 1) there is to be no publication of the information contained in those documents, including any submissions referring to that information.

7. Pursuant to section 12 of the Act, order 6 applies for 50 years or until further order.

8. Pursuant to section 11 of the Act, order 6 applies throughout the Commonwealth of Australia.

9. Liberty to apply.

**********

Endnote

Amendments

03 June 2022 - [212] Superfluous words deleted.

Decision last updated: 03 June 2022