Commissioner of Police v Coroner's Court of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
COMMISSIONER OF POLICE v CORONER'S COURT OF SOUTH AUSTRALIA
[2022] SASC 26
Judgment of the Honourable Justice Blue
MAGISTRATES - CORONERS - INQUESTS AND INQUIRIES - PROCEEDINGS AT INQUEST OR INQUIRY - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS
The Coroners Court is conducting a mandatory inquest under the Coroners Act 2003 into the death of Afrikah Philp. Ms Philp died when the car she was driving collided with a wall in the course of a police pursuit. The Major Crash Investigation Section completed a Significant Incident Investigation report in relation to the pursuit and collision and submitted it to the Coroners Court.
Shortly before the first hearing of the inquest, officers of South Australia Police reviewed the Significant Incident Investigation report and identified a number of issues that needed to be followed up. Three reports under section 12 of the Police Complaints and Discipline Act 2016 were submitted to the Internal Investigation Section of South Australia Police. Over a period of several months the Internal Investigation Section undertook an investigation and produced a report.
A Deputy Coroner issued a summons under section 23 of the Coroners Act 2003 to the Commissioner of Police to produce material compiled as part of the internal investigation. The Commissioner had contended unsuccessfully before the Deputy Coroner that he was not required to produce the documents by reason of section 44 of the Police Complaints and Discipline Act 2016 and the Court was not empowered to make an order under section 44(d) because it could not be satisfied that special reasons required the making of an order and that the interests of justice could not adequately be served except by the making of an order.
The Commissioner seeks judicial review of the decision by the Deputy Coroner to issue the summons, contending that the Deputy Coroner misapprehended and/or misapplied section 44(d) of the Police Complaints and Discipline Act 2016 or took into account irrelevant considerations. Tim Mellor was joined as an interested party to act as a contradictor.
Held (dismissing the application for judicial review):
1The Deputy Coroner did not misapprehend or misapply section 44(d) in respect of satisfaction that special reasons required the making of an order (at [150], [154], [164] [173], [177], [199], [208] and [211]).
2The Deputy Coroner did not misapprehend or misapply section 44(d) in respect of satisfaction that the interests of justice could not adequately be served except by the making of an order (at [217], [220], [224], [227], [228], [230] and [233]).
3The Deputy Coroner did not take into account irrelevant considerations in making the decision to issue the summons (at [238], [241]).
4Application for judicial review dismissed (at [243]).

Coroners Act 2003 (SA) ss 3, 13, 21-25; Police Complaints and Discipline Act 2016 (SA) ss 3, 5, 10, 12-14, 21-26, 44-46; Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) s 48, referred to.
Commissioner of Police v No Respondent; Commissioner of Police v Coroners Court of South Australia [2020] SASCFC 64; Craig v The State of South Australia (1995) 184 CLR 163; R v Ferri [2002] SASC 217; White v State of South Australia (2007) SASR 581, considered.

COMMISSIONER OF POLICE v CORONER'S COURT OF SOUTH AUSTRALIA
[2022] SASC 26

BLUE J: The Coroners Court of South Australia (the Court) is conducting a mandatory inquest under the Coroners Act 2003 (SA) (Coroners Act) into the death of Afrikah Philp. Ms Philp died when the car she was driving collided with a wall in the course of a police pursuit. The Major Crash Investigation Section completed a Significant Incident Investigation report in relation to the pursuit and collision and submitted it to the Court.
Shortly before the first hearing of the inquest, officers of South Australia Police reviewed the Significant Incident Investigation report and identified a number of issues that needed to be followed up. Three reports under section 12 of the Police Complaints and Discipline Act 2016 (SA) (the Discipline Act) were submitted to the Internal Investigation Section of South Australia Police. Over a period of several months the Internal Investigation Section undertook an investigation and produced a report.
A Deputy Coroner issued a summons under section 23 of the Coroners Act to the Commissioner of Police to produce material compiled as part of the internal investigation. The Commissioner had contended unsuccessfully before the Deputy Coroner that he was not required to produce the documents by reason of section 44 of the Discipline Act and the Court was not empowered to make an order under section 44(d) because it could not be satisfied that special reasons required the making of an order and that the interests of justice could not adequately be served except by the making of an order.
The Commissioner seeks judicial review of the decision by the Deputy Coroner to issue the summons, contending that, in making the decision to issue the summons, the Court:
·misapprehended and/or misapplied section 44(d) of the Discipline Act (ground 1); or
·took into account an irrelevant consideration (ground 2).[1]
[1] A third ground that the Commissioner was denied procedural fairness was abandoned at the hearing.
Background
The facts set out below are based on the opening address by counsel assisting the Coroner, some of the exhibits tendered by counsel assisting and other documents tendered at the hearing of this action. These facts obviously may be qualified, supplemented or refined as a result of further evidence adduced at the inquest.
On 5 October 2017 at about 8 pm Dylan Maddison was in the company of Ms Philp when he cut off his home detention bracelet (he being on home detention bail). Mr Maddison was 24 years old. Ms Philp was 17 years old, under the guardianship of the Minister and had never held a drivers licence.
The cutting off of the bracelet was reported by Mr Maddison’s aunt to the Department for Correctional Services and in turn to South Australia Police (SAPOL). Later on that evening, Mr Maddison, in company with Ms Philp, stole a Ford Falcon sedan.
On 6 October 2017 at about 3 am, Mr Maddison’s grandmother telephoned SAPOL. She reported that Mr Maddison was doing burnouts in front of her house. Police officers attended but by that time Mr Maddison had driven off.
On 6 October 2017 at about 4.48 am[2] Ms Philp was driving the Falcon, with Mr Maddison in the passenger seat, south on Main South Road at Morphett Vale. Brevet Sergeant A of SAPOL was undertaking speed detection duties on the western side of South Road. The speed limit was 60 kilometres per hour. He estimated the speed of the Falcon at between 95 and 105 kilometres per hour. He saw the vehicle brake and, after it had passed his location, his laser speed detection device recorded a speed of 79 kilometres per hour. He saw the vehicle accelerate again. He was apparently not aware of the identity of the person or persons in the Falcon, or that the Falcon had been stolen, although this is not expressly stated in the exhibits tendered in this action.
[2] The times referred to herein are taken from various sources and have not necessarily been synchronised.
At 4.48 am and about 35 seconds[3] Brevet Sergeant A took off in his police vehicle in pursuit of the Falcon. The location, direction and speed of his police vehicle was automatically recorded approximately every 15 seconds. He initially travelled on the wrong side of South Road.
[3] By 4.48 am and 38 seconds his police vehicle was travelling at 10 kilometres per hour.
At 4.49 am and 46 seconds, after passing the junction with Hilliers Road, Brevet Sergeant A activated the police vehicle’s emergency lights and sirens. The Falcon failed to stop.
After passing the intersection with Bains Road and O’Sullivan Beach Road, Brevet Sergeant A accelerated to approximately 105 kilometres per hour.
At about 4.50 am Brevet Sergeant A sent a radio transmission to the Police Communications Centre. This and subsequent communications were received by Constable B in the Centre. Brevet Sergeant A reported a “fail to stop”. On being asked by Constable B whether he was calling the code for a Police Pursuit High Risk Driving incident, he said yes. He said that it was a dark coloured Ford travelling at what the laser showed as 95 kilometres per hour; and he was now heading south at 110 kilometres per hour on South Road approaching Beach Road but the Falcon was pulling away.
The General Order Operational Safety – High Risk Driving (the General Order) issued by the Commissioner of Police applies, amongst other things, to high speed pursuits. It requires a police officer, on deciding to embark on a pursuit, to assess the potential benefit of the pursuit against the safety risks entailed and to continuously reassess this throughout the pursuit. It requires a pursuit manager, who is the State Shift Manager or their delegate, to take command and make various assessments and take various actions. It requires there to be a supervisor, who has various responsibilities including supervising patrol responses and liaising with the pursuit commander.
At about 4.50 am Constable B pressed a button (the alarm button) that activates the sounding of an alarm, illumination of a light and display on a monitor within the Communications Centre that a patrol was engaged in a police pursuit. One of the purposes of the display on the monitor is to alert the pursuit commander. Unbeknown to Constable B at the time, the alarm, light and monitor display were not in fact activated and the State Shift Manager (the potential pursuit commander) was not aware of the pursuit.
Constable B created a police incident in the SAPOL computer dispatch system (SACAD). It was necessary to do this before any details could be entered into the computer. This entailed that details of the transmissions had to be memorised by Constable B until they could be entered. Those transmissions were continuing during the process of creating the police incident in SACAD.
At 4.51 and 11 seconds SACAD recorded the incident and allocated an incident number ending in 205.
The communications between Brevet Sergeant A and Constable B were also aired over a channel used by patrols in the South Coast local area.
Brevet Sergeant A observed the Falcon travel through the intersection with Doctors Road and Beach Road, which is monitored by a red light/speed camera, at a speed that he estimated to be between 105 and 115 kilometres per hour. He saw the camera flash. He slowed his own speed to approximately 80 kilometres per hour as he approached the intersection because he had seen another vehicle turning right at the intersection onto Beach Road.
Brevet Sergeant A transmitted that the Falcon and the police vehicle had both just activated a red light camera and his own speed was 80 kilometres per hour. He said that the Falcon was approaching Penny’s Hill Road and was well ahead.
After passing through the Doctors Road/Beach Road intersection, Brevet Sergeant A accelerated to approximately 95 kilometres per hour. He saw the Falcon pass through the intersection with Penny’s Hill Road.
Brevet Sergeant A transmitted asking Constable B to advise Aldinga patrols that they were currently heading south on South Road; his own speed was 120 kilometres per hour and the Falcon was pulling away; and asking if they could get Aldinga patrols down towards Seaford. South Coast patrol 220 transmitted saying that the transmission was received and they were heading there now. Brevet Sergeant A transmitted in response that it was a dark coloured Ford Falcon sedan, just rounding the bends near the Expressway and he still had the Falcon in sight. South Coast patrol 220 transmitted “roger”.
At 4.51 am and 23 seconds Constable B recorded in SACAD that Brevet Sergeant A was travelling at 120 kilometres per hour. At 4.51 am and 30 seconds she recorded in SACAD that Aldinga patrol 20 was aware. However, unbeknown to her at the time, she entered this information (and subsequent information until after the collision of the Falcon with wall) into a different and earlier police incident number (ending in 197).
At about 4.52 am Senior Constable C apparently observed that the alarm, light and monitor display has not been activated. She pressed the alarm button, which activated the alarm, light and monitor display. Constable B saw this and became aware at that point that, when she had earlier pressed the alarm button, it had not activated the alarm, light or display.
Inspector D was the State Shift Manager. He heard the alarm, stood up and saw the monitor display that the dispatch group was South Coast. As a result, he activated the South Coast Talk-Group on his console and put on his radio headset to listen to the Talk-Group. He located the relevant SACAD event (incident number 205) but found that there was no information entered on it. Unbeknown to him at the time, this was because Constable B had been entering information onto incident number 197 by mistake.
After passing Aussie Inn, Brevet Sergeant A saw the Falcon continuing at speed along South Road and he accelerated to approximately 145 kilometres per hour.
South Coast patrol 20 asked Brevet Sergeant A to maintain observations until they got out onto South Road and they would see if the Falcon was heading their way.
Brevet Sergeant A transmitted that he had lost sight of the Falcon. He said that he or the Falcon was through the S’s near the Expressway. He would see if he could pick it up once he straightened up on South Road. His speed was currently 145 kilometres per hour.
This was the first transmission heard by Inspector D.
At 4.52 am and 32 seconds Constable B recorded in SACAD (on incident number 197) that Brevet Sergeant A’s speed was 145 kilometres per hour and the Falcon was not in sight.
At about 4.53 am Brevet Sergeant A regained sight of the Falcon travelling at speed approaching the intersection with Seaford Road.
Inspector D transmitted asking Brevet Sergeant A what was the reason for the chase. Brevet Sergeant A responded that the vehicle was travelling at 95 kilometres per hour in a 60 kilometre per hour zone, failed to stop and accelerated at speed; and he had just got sight of it again.
Brevet Sergeant A observed the Falcon braking heavily to turn right onto Seaford Road.
Brevet Sergeant A transmitted that the Falcon was turning right onto Seaford Road through a green light.
A civilian driver was stationary at the intersection of South Road and Seaford Road waiting to turn right from South Road into Seaford Road. He saw the Falcon drive past him on his left and turn right into Seaford Road. He estimated the speed of the Falcon at over 100 kilometres per hour. A CCTV camera recorded the time at 4.52 am and 57 seconds.
The civilian driver saw the Falcon spin out of control as it turned into Seaford Road, hit the concrete wall on the southern side of Seaford Road, bounce off the wall and spin until it came to rest partially on the median strip. A reconstruction expert subsequently estimated the speed of the Falcon when control was lost at approximately 105 kilometres per hour and when it collided with the wall at approximately 85 kilometres per hour.
At 4.53 am and 4 seconds Constable B recorded in SACAD (on incident number 197) that the Falcon was turning right onto Seaford Road.
At 4.53 am and 12 seconds Brevet Sergeant A turned right onto Seaford Road. On entering Seaford Road, he saw that the Falcon had crashed. At 4.53 am and about 30 seconds[4] he stopped his vehicle. He ran towards the Falcon and saw two people in the vehicle.
[4] At 4.53 am and 25 seconds his police vehicle was travelling at 13 kilometres per hour and at 4.53 am and 40 seconds it was stationary.
Brevet Sergeant A transmitted that the Falcon had collided with a wall and that the occupants were still inside.
At 4.53 am and 27 seconds Constable B recorded in SACAD (on incident number 197) that the Falcon had collided with a wall and that the occupants were still inside.
Brevet Sergeant A saw a female, who was Ms Philp, in the driver’s seat and a male, who was Mr Maddison, in the passenger seat.
South Coast patrol 20 transmitted that they were making their way urgently.
Brevet Sergeant A transmitted that he urgently required ambulance and police. South Coast patrols 10 and 11 transmitted that they were making their way urgently.
At 4.53 am and 59 seconds Constable B recorded in SACAD (on incident number 197) that South Coast patrols 11 and 20 were proceeding there urgently.
At about 4.54 am Constable B attempted to create a tasking for the Ambulance Service and Metropolitan Fire Service. She could not do so and realised that this was because she had been typing information into police incident number 197 that had been closed. She asked Senior Constable E to locate the correct police incident number, which was done. At 4.58 am and 55 seconds the information recorded on incident number 197 was transferred onto incident number 205.
For ease of reference, I refer to police officers who were involved in the pursuit (such as Brevet Sergeant A) or associated with the pursuit (such as Constable B and Inspector D) as officers involved in the pursuit.
At about 5.01 am fire and ambulance services arrived at the scene.
At 6.08 am Ms Philp was placed into an ambulance and taken to Flinders Medical Centre, arriving at about 6.25 am. At about 7.12 am one of the police officers was informed by the head doctor that Ms Philp’s condition was critical and she would have a MIR scan done and be taken to the Intensive Care Unit.
At about 7.54 am officers from the Major Crash Investigation Section (the Major Crash Investigation Section or MCIS) of SAPOL attended at the scene of the collision and undertook a crash scene investigation. Officers of the Internal Investigation Section of SAPOL (the Internal Investigation Section or IIS) also attended at the scene but evidence was not adduced concerning their investigation. Officers from South Coast CIB also attended at the scene.[5]
[5] Their role was to investigate alleged offences committed by Mr Maddison or Ms Philp (breach of bail, illegal use of a motor vehicle and driving offences) and statements by officers from South Coast CIB were referred to in the SII Report and tendered during counsel assisting’s opening at the inquest.
On 6 October 2017 a Commissioner’s Briefing Paper was prepared. In due course it was provided to the principal investigator from the Major Crash Investigation Section.
On 7 October 2017 Mr Maddison was interviewed by an officer from South Coast CIB. He said that Ms Philp suffered a fit or seizure as she went around the corner from South Road into Seaford Road; and he grabbed the steering wheel but Ms Philp was pulling it the other way. Ms Philp had a medical history of seizures during the previous year. A toxicology report in respect of a blood sample taken from Ms Philp showed that she had consumed methylamphetamine and cannabis before the collision.
On 13 October 2017 a Significant Incident Investigation – Terms of Reference was issued by the Deputy Commissioner of Police. It was provided to the principal investigator from the Major Crash Investigation Section. The terms of reference said that the Senior Investigating Officer was to ensure that the MCIS investigation encompassed circumstances that resulted in the vehicle collision and whether the pursuit complied with the General Order. It also required that the Senior Investigating Officer ensure that timely advice was given to the Officer in Charge of Internal Investigation Section if any police ‘Discipline matters’ were identified.

On 20 October 2017 Ms Philp died as a result of her injuries sustained in the collision with the wall.
In June 2018 Senior Sergeant Murray, of the Major Crash Investigation Section, completed a Significant Incident Investigation report (the SII Report). The report referred to 45 witness statements and other exhibits and documents, which I infer accompanied the report. On 21 June 2018 the report was submitted to the Court.
Senior Sergeant Murray in the report expressed the opinion that Brevet Sergeant A complied with the General Order because his transmissions on the radio were clear and frequent. He did not in the report address the benefit versus risk assessments made by Brevet Sergeant A.
Senior Sergeant Murray referred to the non-activation of the alarm in the Police Communications Centre and expressed the opinion that this did not affect management of the pursuit because radio communication was calm and clear. He did not in the report explore whether the pursuit commander might have intervened if aware of the pursuit earlier and did not refer to the fact that apparently there was no supervisor as required by the General Order. He did not refer to the recording by Constable B of data against the wrong incident number.
On 17 June 2020 the hearing of the inquest into Ms Philp’s death commenced before a Deputy Coroner (the Coroner). The inquest was a mandatory inquest because the death of Ms Philp was a “death in custody” within the definition in the Coroners Act. Mr Plummer appeared as counsel assisting the Coroner. Mr Plummer tendered 50 exhibits, being documents referred to in the SII Report, and made an opening address. The Coroner identified as one of the areas for inquiry the failure of the alarm button in the Police Communications Centre to activate the alarm, light and display monitor. The Coroner determined that certain inquiries should be made and also that oral evidence should be taken from Brevet Sergeant A. The further hearing of the inquest was adjourned to a date to be fixed.
On 7 July 2020 the solicitor for the Commissioner sent a letter to the Court. She said that, prior to 17 June 2020, SAPOL reviewed the SII Report and identified a number of issues that needed to be followed up. As part of this, three reports under the Discipline Act were submitted. Those reports were currently being investigated (the IIS Investigation), which would take some time. Brevet Sergeant A was one of the persons whose conduct was the subject of a report. Reference was made to the possibility of penalty privilege being invoked. The conclusion of the IIS Investigation may necessitate a further review of the conclusions in the SII Report. In addition, MCIS was undertaking further inquiries in relation to Ms Philp’s seizures. An adjournment of four months was sought to ensure that these processes were complete.
On 27 August 2020 a hearing of the inquest was convened to consider a request by the solicitor acting for the Commissioner for an adjournment before Brevet Sergeant A and Inspector D gave evidence. It was determined that oral evidence should also be taken from Inspector D in addition to Brevet Sergeant A. Counsel assisting and counsel for the Commissioner informed the Coroner that SAPOL were undertaking an IIS investigation. The Coroner inquired why the Court had not been informed of the existence of the investigation and wondered whether, if she had not sought to have the two witnesses called, it might never have been informed. Counsel for the Commissioner said that the IIS Investigation only arose quite recently, it arose from someone looking over the conclusions reached by the investigating officer which led to the subsequent investigations, and she could not explain the delay. The Coroner raised the possibility that the investigating officer who actually compiled the conclusions might need to be called as a witness.
On 8 October 2020 a further hearing of the inquest was convened. Counsel for the Commissioner informed the Coroner that the IIS Investigation was very near complete and it was anticipated that the conclusions reached would be no different to those in the original investigating officer’s report. She said that there was also a further investigation being undertaken by MCIS, which should be completed within four weeks, and which largely involved reviewing the data rather than taking fresh evidence but extended to inquiries being made in relation to the seizures in relation to Ms Philp. The Coroner said that she no longer required further investigation in relation to the seizures.
In relation to the IIS Investigation, the Coroner said that she would normally be interested to know what issues were explored because it might give rise to questioning in the inquest; anticipated that she would be assisted by having the report; and requested counsel for the Commissioner to obtain instructions on providing the report to the Court. A tentative date for evidence and submissions on 12 January 2021 was fixed and the matter was adjourned for directions to 22 October 2020.
On 22 October 2020 counsel for the Commissioner informed the Coroner that the Commissioner respectfully declined the invitation to disclose any information concerning the IIS Investigation, relying on section 44 of the Discipline Act. The Coroner said that she proposed to issue a summons to the Commissioner to produce the material and the Commissioner could, if he wished, resist production on the ground of section 44. Counsel assisting said that a draft summons had been produced. The Coroner directed that the summons issue, that the Commissioner file written submissions by 13 November, and listed the issue for argument on 19 November 2020.
The summons was issued.
On 13 November 2020 the Commissioner instituted a judicial review action in this Court seeking quashing of the decision to issue the summons. In response, on 16 November the Coroner withdrew the summons.
On 18 November 2020, due to COVID-19, the Coroner vacated the hearing listed for 19 November and instead gave directions for written submissions by counsel assisting and by the Commissioner in relation to the prospective issue of a further summons for the same material.
On 27 November 2020 counsel assisting filed written submissions contending that the criteria contained in section 44(d) of the Discipline Act were satisfied in relation to the material.
On 11 December 2020 counsel for the Commissioner filed written submissions contending that the criteria contained in section 44(d) were not satisfied in relation to the material.
On 16 December 2020 an affidavit by Sarah Sloan sworn on 13 November 2020 was served by the Commissioner’s solicitors on counsel assisting. That affidavit had been filed in the first judicial review action. Ms Sloan was a solicitor who had the conduct of that action on behalf of the Commissioner. In that affidavit, Ms Sloan said that she was instructed that:
·an investigation of the conduct of certain officers involved in or associated with the pursuit of Ms Philp was undertaken under the Discipline Act;
·the investigation determined that no further action was required involving any of those officers; and
·the SII Report remained unchanged.
On 21 December 2020 the Coroner issued a summons to the Commissioner to produce documents returnable on 12 January 2021. The summons provided:
WHEREAS I have reason to believe that you have in your possession or power certain documents namely any and all material compiled as part of an internal investigation including any audio-visual footage, audio recordings, findings, recommendations, outcomes or internal disciplinary procedures relating to [Ms Philp] required for the purpose of conducting the Inquest concerning the death of [Ms Philp].
Now by virtue of the provisions of the Coroners Act, 2003, and all other enabling powers, and being satisfied that pursuant to Section 44 (d) Police Complaints and Discipline Act 2016, there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order, I require you to produce to me the said records and documents.
On 24 December 2020 the Coroner issued written reasons for the decision to issue a summons.
On 6 April 2021 the Commissioner instituted this judicial review action.
The legislative regimes
Coroners Act
The jurisdiction and powers of the Court are governed by the Coroners Act.
Section 13 addresses the jurisdiction of the Court. It provided at the material times:
13—Jurisdiction of Court
The jurisdiction of the Coroner's Court is to hold inquests in order to ascertain the cause or circumstances of the events prescribed by or under this Act or any other Act.
Section 21 provides for the holding of inquests. It provided at the material times:
21—Holding of inquests
(1)The Coroner's Court must hold an inquest to ascertain the cause or circumstances of the following events:
(a)a death in custody;
(b) if the State Coroner considers it necessary or desirable to do so, or the Attorney-General so directs—
(i)any other reportable death or a death that would, but for section 3(2), have been a reportable death; or
(ii)the disappearance from any place of a person ordinarily resident in the State; or
(iii)the disappearance from, or within, the State of any person; or
(iv)a fire or accident that causes injury to person or property; or
(c)any other event if so required under some other Act.
(2)However, if a person has been charged in criminal proceedings with causing the event that is, or is to be, the subject of an inquest, the Court may not commence or proceed further with the inquest until the criminal proceedings have been disposed of, withdrawn or permanently stayed.
(3)An inquest may be held to ascertain the cause or circumstances of more than one event.
Subsection 3(1) defines a “death in custody” to mean, amongst other things, the death of a person where there is reason to believe that the cause of death arose while the person was evading apprehension.
Section 22 confers various powers of inquiry on the Court for the purposes of an inquest.
Section 23 addresses proceedings on inquests. It relevantly provided at the material times:
23—Proceedings on inquests
(1)The Coroner's Court may, for the purposes of an inquest—
(a)by summons, require the appearance before the inquest of any person; or
(b)     by summons, require the production of any relevant records or documents and, in the case of a record or document that is not in the English language, require the production of a written statement in the English language of the contents of the record or document; or
(c)     inspect any records or documents produced before it, and retain them for such reasonable period as it thinks fit, and make copies of the records or documents or their contents; or
(d)     require any person to make an oath or affirmation to answer truthfully questions put by the Court or by any person appearing before the Court; or
(e)     require any person appearing before the Court (whether summoned to appear or not) to answer any questions put by the Court or by any person appearing before the Court.
…
(4)A person who—
(a)     fails, without reasonable excuse, to comply with a summons issued to appear, or to produce records or documents, before the Court; or
(b)     having been served with a summons to produce a written statement of the contents of a record or document in the English language fails, without reasonable excuse, to comply with the summons or produces a statement that he or she knows, or ought to know, is false or misleading in a material particular; or
(c)     refuses to be sworn or to affirm, or refuses or fails to answer truthfully a relevant question when required to do so by the Court; or
(d)refuses to obey a lawful direction of the Court; or
(e)     misbehaves before the Court, wilfully insults the Court or interrupts the proceedings of the Court,
commits a contempt of the Court.
(5)However, a person is not required to answer a question, or to produce a record or document, under this section if—
(a)     the answer to the question, or the contents of the record or document, would tend to incriminate the person of an offence; or
(b)     answering the question, or producing the record or document, would result in a breach of legal professional privilege.
…
Section 24 provides that the Court is not bound by the rules of evidence.
Section 25 addresses findings and recommendations after completion of an inquest. It relevantly provided at the material times:
25—Findings on inquests
(1)The Coroner's Court must, as soon as practicable after the completion of an inquest, give its findings in writing setting out as far as has been ascertained the cause and circumstances of the event that was the subject of the inquest.
(2)The Court may add to its findings any recommendation that might, in the opinion of the Court, prevent, or reduce the likelihood of, a recurrence of an event similar to the event that was the subject of the inquest.
(3)However, the Court must not make any finding, or suggestion, of criminal or civil liability.
…
In a passage subsequently approved by the Full Court,[6] in Bell v Deputy Coroner of South Australia[7] I said:
The jurisdiction of the Court, in the case of an inquest into a death in custody, is conferred by a combination of sections 13 and 21(1)(a) of the Act, which are extracted above. They confer jurisdiction to hold an inquest in order to ascertain the cause or circumstances of the death. The reference to “circumstances” is broader than the reference to “cause”. The jurisdiction is conferred in purposive terms, that is to inquire for the purpose of determining the cause or circumstances of the death.[8]
[6] Commissioner of Police v No Respondent; Commissioner of Police v Coroners Court of South Australia [2020] SASCFC 64 at [25] per Kourakis CJ, Parker and Hughes JJ.
[7] [2020] SASC 59.
[8] At [576].
Discipline Act
Section 5 of the Discipline Act requires the Commissioner to ensure that a separate section (the Internal Investigation Section) is constituted within SAPOL to carry out investigations under the Act in relation to the conduct of designated officers (essentially members of SAPOL).[9]
[9] It also extends to the making of complaints and reports about police cadets and special constables but this aspect can be ignored for present purposes.
Part 2 Division 1 provides for the making of complaints and reports about designated officers.
Section 10 provides that a complaint may be made by or on behalf of an aggrieved person to a designated officer, a police public servant or the Office for Public Integrity.
Section 12 provides:
12—Designated officers to report certain conduct of other designated officers
(1)Without limiting any other provision of this or any other Act, a designated officer who reasonably suspects that another designated officer has engaged in conduct that constitutes corruption, misconduct or maladministration in public administration must report that suspicion in accordance with this section.
(2)A report—
(a)     must be made to the IIS or the OPI as soon as is reasonably practicable (but in any event within 7 days) after the designated officer forms the suspicion; and
(b)     must be made in a manner and form determined by the IIS or the OPI (as the case requires); and
(c)     must comply with the requirements determined by the Commissioner and approved by the ICAC.
(3)A designated officer who, without reasonable excuse, refuses or fails to comply with subsection (1) may be dealt with under this Act for a breach of discipline.
Subsection 3(1) at the material times defined[10] misconduct in public administration (misconduct) and maladministration in public administration (maladministration) as follows:
[10] The definitions were made by cross reference to the definitions in the Independent Commission Against Corruption Act 2012 (SA). They are now made by cross reference to the definitions in the Ombudsman Act 1972 (SA).
"Misconduct in public administration" means—
(a)contravention of a code of conduct by a public officer while acting in his or her capacity as a public officer that constitutes a ground for disciplinary action against the officer; or
(b)other misconduct of a public officer while acting in his or her capacity as a public officer.
"Maladministration in public administration"—
(a)means—
(i) conduct of a public officer, or a practice, policy or procedure of a public authority, that results in an irregular and unauthorised use of public money or substantial mismanagement of public resources; or
(ii) conduct of a public officer involving substantial mismanagement in or in relation to the performance of official functions; and
(b)includes conduct resulting from impropriety, incompetence or negligence; and
(c)is to be assessed having regard to relevant statutory provisions and administrative instructions and directions.
Section 13 requires referral as soon as reasonably practicable and in any event within three days to the Independent Investigation Section of a complaint received by a designated officer or report received by the Office for Public Integrity.[11]
[11] The Office for Public Integrity could refer instead to the Independent Commissioner (now Commission) Against Corruption but that is not presently relevant.
Section 14 requires, subject to irrelevant exceptions, the Independent Investigation Section to assess each complaint or report received to determine whether it raises an issue, amongst others, of misconduct or maladministration.
Subsection 21(1) requires, subject to irrelevant exceptions, the Independent Investigation Section to investigate each complaint or report received. Section 21 confers investigative powers on a member of the IIS, including to compel a designated officer to produce a document, furnish information or answer a question relevant to the investigation.
Part 4, and in particular sections 22 to 26, provides for disciplinary proceedings to be instituted by the Commissioner in the Police Disciplinary Tribunal and for the imposition of sanctions by the Commissioner.[12]
[12] Part 3, and in particular sections 18 and 19, provides for a process for the resolution of a complaint and a management conference. Although these provisions also apply to resolution of a report, it may be expected that it would be relatively rare for a report to be referred to a management conference.
Section 45 prohibits the disclosure of information connected with a matter forming or subject of a complaint or report or assessment or investigation under the Act by persons engaged in the administration of the Act or persons knowingly receiving such information. This is subject to various exceptions including when required or authorised amongst others by the Act or the Commissioner or when disclosed in accordance with an order of a court.
Section 46 prohibits the publication (in a newspaper, radio, television, internet or other similar means of communication to the public) of the fact or identity of a person who has made a complaint or report or given information or evidence under the Act; information tending to suggest that a particular person is or may have been the subject of a complaint or report or assessment or investigation under the Act; or any other information or evidence publication of which is prohibited by, amongst others, the Commissioner. This is subject to an exception when authorised amongst others by the Commissioner. Unlike section 45, section 46 does not apply generally to disclosure of information but only to publication to members of the public.
Section 44 imposes a limitation on requirements to divulge information disclosed or obtained in the course of an investigation under the Act. It provides:
44—Limitation on requirement to divulge information
Despite any other Act or law, a person who is, or who has been, engaged in the administration or enforcement of this Act or the repealed Act cannot be required to divulge information disclosed or obtained in the course of an investigation under this Act or the repealed Act except where such a requirement is made—
(a)in proceedings before a court or the Tribunal in respect of—
(i)an offence; or
(ii)a breach of discipline,
relating to a matter the subject of the investigation; or
(b)in proceedings under the Royal Commissions Act 1917; or
(c)by the ICAC or the OPI; or
(d)by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.[13]
[13] Emphasis added.

The predecessor of sections 44 and 45 was section 48 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) (the Former Act). Subsection 48(2) prohibited a prescribed officer from divulging information disclosed or obtained under that Act acquired by reason of being a prescribed officer. As originally enacted, subsection 48(4) provided an exception in respect of proceedings before a court or in proceedings in respect of a breach of discipline before the Tribunal or the Commissioner.
In 1996 the Former Act was amended[14] by substituting a new subsection 48(4) and inserting a new subsection 48(7) which provided:
[14] By the Police (Complaints and Disciplinary Proceedings) (Miscellaneous) Amendment Act 1996 (SA).
(7)Despite any other Act or law, a person who is or has been the Authority or the Commissioner cannot be required to divulge information disclosed or obtained under this Act in the course of an investigation except where such a requirement is made-
(a)     in proceedings before a court or the Tribunal in respect of-
(i)an offence; or
(ii)a breach of discipline,
relating to a matter the subject of the investigation; or
(b)     in proceedings under the Royal Commissions Act 1917; or
(c)     by a court in the interests of justice.[15]
[15] Emphasis added.
The new subsection 48(4) created an exception to the subsection 48(2) prohibition containing the same criteria as paragraphs (a), (b) and (c) of subsection 48(7).
In the second reading speech on the Bill that became the amending Act, the Attorney-General said in the Legislative Counsel:
In recent times there have been attempts by defence counsel to subpoena Authority and police files relating to the investigation of complaints in the hope that there may be something in the files which may discredit police witnesses in criminal trials. These ‘fishing expeditions’ are disruptive not only to the Authority and the police but also to the trials of criminal matters when the subpoenas are sought as a matter is to go to trial. However, a blanket prohibition against the production of these files in criminal trials may lead to a miscarriage of justice where information obtained during the course of investigating a complaint is relevant in a criminal prosecution. Accordingly, provision is made for the information to be divulged to a court where the interests of justice require it to be divulged.[16]
[16] South Australia, Parliamentary Debates, Legislative Council, 3 October 1996, 80.
In 1998 the Former Act was amended[17] by substituting a new section 48(4)(c) which provided:
(c)as required by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.
[17] By the Police (Complaints and Disciplinary Proceedings) (Miscellaneous) Amendment Act 1998 (SA).
In the second reading speech on the Bill that became the amending Act, the Minister for Police, Correctional Services and Emergency Services said in the House of Assembly:
The third amendment is to section 48(4)(c)… This provision was amended in 1996 to provide that it must be in the interests of justice before the court can require the information to be divulged. This change was the result of defence counsel conducting ‘fishing expeditions’ in the hope of finding something in Police Complaints Authority files that would discredit police witnesses in criminal trials. These ‘fishing expeditions’ are disruptive not only to the Authority and the police but also to the trials of criminal matters when subpoenas are sought as a matter goes to trial.
‘Fishing expeditions’ have not ceased and the provision is now further amended to require applicants to satisfy the court that there are special reasons requiring the making of an order and the interests of justice cannot be adequately served except by making the order. Where the information in the files is necessary to ensure that justice is done the information will be made available to the defence but only then.[18]
[18] South Australia, Parliamentary Debates, House of Assembly, 3 June 1998, 1067.
Before the amendment, paragraphs (a), (b) and (c) of subsections 48(4) and (7) were identical. The legislature overlooked amending subsection (7) when it amended subsection (4). This was remedied in 2000.
In 2000 the Former Act was amended[19] by substituting a new section 48(7)(c) which provided:
(c) as required by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.[20]
[19] By the Police (Complaints and Disciplinary Proceedings) (Miscellaneous) Amendment Act 2000 (SA).
[20] Emphasis added.
In the second reading speech on the Bill that became the amending Act, the Minister for Environment and Heritage said in the House of Assembly:
Clause 6 of the 1998 amending Bill was concerned about the sometime practice of defence counsel in a criminal trial subpoenaing the records of the PCA in relation to officers involved in the case in order to see if there was anything discreditable in their record which could be used in court to attack police testimony. Clause 6 amended s. 48(4)(c) of the Act to tighten this up by requiring that the court find ‘special reasons’ for making any such order and that ‘the interests of justice cannot adequately be served except by the making of such an order’.
Section 48(4) regulates the confidentiality obligations of ‘prescribed officers’… The confidentiality provisions in relation to the Commissioner and the PCA are treated separately in s. 48(7). The 1998 Bill did not amend s. 48(7) to impose the same strict test…
The PCA has drawn attention to this. He is of very opinion that it is an anomaly which requires remediation. The Government agrees. The Bill therefore amends s. 48(7) so that the wording reflects exactly the protection enacted in relation to prescribed officers under s. 48(4).[21]
[21] South Australia, Parliamentary Debates, House of Assembly, 3 May 2000, 1041.
In R v Ferri[22] the defence issued subpoenas to the Commissioner of Police and the Police Complaints Authority requiring production of documents in relation to all complaints and investigations regarding the conduct of two police officers who were Crown witnesses in that prosecution. The documents were produced to (and inspected by) the Court but objection was taken to their disclosure to the defence on the basis that the test established by the final amended version of section 48(7)(c) of the Former Act (which is almost identical to section 44(d) of the Discipline Act) was not satisfied. Olsson J considered the history of the provision (as summarised above) and held that neither the special reasons nor the interests of justice limb was satisfied. Olsson J said as to the construction of the provision:
A consideration of the history of legislation, as particularly revealed by relevant second reading speeches, indicates that the confidentiality provisions of the statute were directed towards what was, on the occasion of the 2000 amendment, described as the “sometime practice of defence counsel in a criminal trial subpoenaing the records of the Police Complaints Authority in relation to officers involved in the case in order to see if there was anything discreditable in their records which could be used to attack police testimony”. The section was therefore sought to be amended to “tighten this up”, by requiring the existence of special reasons and satisfaction that the interests of justice could not adequately be served, except by the making of an order for disclosure.
…
It is thus abundantly clear as to what was the evil sought to be addressed by the legislation. The phrase “special reasons” has not been judicially defined in the context of s 48 in its present form, but, clearly, it establishes a requirement that an applicant for disclosure must establish the existence of a situation which … takes the case out of the mainstream of the obvious legislative intent that proceedings under the statute are to be confidential. The reasons must be special to the particular case, the features of which are out of the ordinary; and by reason of which it can also fairly be said that the interests of justice cannot adequately be served, absent the disclosure sought.[23]
[22] [2002] SASC 217.
[23] At [13], [15]. (Citation omitted)
In White v State of South Australia[24] 12 uranium protesters sued the State and 25 police officers for assault, false imprisonment and other causes of action relating to the police response to the protest. The defendants discovered certain documents and claimed immunity from production under section 48 of the Former Act. The plaintiffs contended that the criteria in section 48(7)(c) were satisfied. The Full Court held that they were not. Doyle CJ said as to the construction of the provision:
… In my respectful opinion the Court does not exercise a discretion when it makes an order under s 48(7)(c). It may make the order only if the statutory criteria are satisfied.
I have already referred to the fact that the CDP Act has a number of provisions that emphasise the confidential aspect of investigations undertaken by the PCA and by the internal investigation branch under the CDP Act. There are no doubt a number of reasons for this. First, there may be a need to protect complainants. Confidentiality may also be required to encourage complainants to come forward, in the knowledge that their complaint will be treated as confidential. In some cases there will be a need for the fact of investigation, and its scope, to be kept confidential. If it is not, the persons under investigation might have the opportunity to destroy or to conceal relevant material, or to put their heads together. An investigation under the CDP Act will usually involve the scrutiny of the internal operations of the police force, and there may be aspects of this that should be treated as confidential. There may also be a need to keep confidential the investigation methods used by the internal investigation branch. It is also possible that disclosure of information acquired in the course of an investigation might prejudice the investigation of crimes by the police force: see s 48(3) of the CDP Act (above).
…
The expression “special reasons” must always be interpreted in light of its context.
In the context of the CDP Act, and having regard to the sensitive nature of the functions of the PCA and of the internal investigation branch, “special reasons” must mean reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular or significant weight. And, as I have already said, they must be reasons that call for or require the making of an order.
It goes without saying that circumstances that are routine, and consequences that are a normal and inevitable result of the secrecy provisions, are unlikely to give rise to “special reasons”. The submission that the PCA and the Commissioner should be accountable to the Courts (presumably by requiring disclosure of information) should not be accepted. It is clear from the legislation that that cannot be the starting point. The legislation provides otherwise. Similarly, the submission that disclosure of the material will facilitate the efficient conduct of the proceedings cannot be accepted as a relevant matter. There is nothing special or out of the ordinary in the fact that the inability to obtain the production of documents such as the contested documents will or might prejudice the efficient conduct of the litigation. Under this head the Court must also consider the possible impact of the making of an order on those involved in the matter that has been investigated, and on those who are the subject of the relevant information. It must also involve a consideration of the impact or possible impact of an order on the ability of the PCA and of the internal investigation branch to discharge their functions under the CDP Act.
…
The Court must also consider what is required by the interests of justice. The power under s 48(7)(c) may fall to be exercised in a wide range of circumstances. It is not limited to production in connection with civil litigation or criminal proceedings. This further provision requires consideration of the justice of the situation, which (at least in the context of civil or criminal proceedings) invites attention to the circumstances of the parties, and to the ability of the court to render justice. The Court must be satisfied that only by the making of an order can the interests of justice adequately be served, and that necessarily implies that unless the interests of justice require the making of an order, it is not to be made.[25]
[24] [2007] SASC 75, (2007) SASR 581.
[25] At [45]-[46], [48]-[50], [52]. (Citation omitted)
Debelle J addressed only the construction of the first limb (special reasons), saying:
The primary meaning of “special” is “of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree”: Oxford English Dictionary. The expression “special reasons” takes its colour and meaning from its context…
…
… The additional requirement of special reasons, therefore, means that there must be some factor over and above the interests of justice which require disclosure. It means some special feature of the circumstances which provides a reason, not usually present, for requiring disclosure.[26]
[26] At [98]. (Citations omitted)
D J addressed only the construction of the first limb (special reasons), saying:
Doyle CJ deals with the topic of special reasons and says that:
Special reasons must mean reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular or significant weight.
His Honour also said:
Circumstances which are routine and consequences that are a normal and inevitable result of the secrecy provisions are unlikely to give rise to special reasons.
I respectfully agree with those statements.[27]
[27] At [114]-[116].
The general purpose of sections 44 and 45 is to provide a general protection of the confidentiality of information disclosed or obtained in the course of an investigation under the Act but to enable a court, tribunal or specified investigatory body to require production in defined circumstances (depending on who is imposing the requirement and in what context).
Section 44(d) imposes two prerequisites that must be satisfied before a court is empowered to make an order:
1the court is satisfied that there are special reasons requiring the making of an order that requires the divulging of information disclosed or obtained in the course of an investigation under the Act (the first limb); and
2the court is satisfied that the interests of justice cannot adequately be served except by the making of an order that requires the divulging of information disclosed or obtained in the course of an investigation under the Act (the second limb).
The application of these tests does not involve the exercise of a discretion. It involves a determination that the limb is either satisfied or not satisfied. However, if both tests are satisfied, the court has a discretion whether or not to make an order.
In relation to the first limb, although the test is a single test whether there are special reasons requiring an order for divulgation, in a practical sense it may be useful, as was done by Doyle CJ in White v State of South Australia, to identify two steps. First, are there special reasons for making an order? Secondly, do those special reasons require the making of an order?
The second limb is that the interests of justice cannot adequately be served except by the making of such an order. This was paraphrased by Doyle CJ in White v State of South Australia as meaning that the interests of justice require the making of such an order.
Although there are two limbs each of which must be satisfied, the matters relevant to determining whether each limb is satisfied will overlap. The question whether special reasons require divulgation will be closely allied to the question whether the interests of justice require divulgation. If special reasons require the making of an order, it is more likely that the interests of justice will require the making of an order, although of course each limb must be considered and satisfied.
Neither limb refers expressly to balancing the prejudice that would be caused if an order is not made against the prejudice that would be caused if an order is made. If the prejudice caused by making an order would outweigh or substantially outweigh the prejudice caused by not making an order, it would seem that special reasons would not require the making of an order or the interests of justice would not require the making of an order. However, if such a balancing exercise is not to be undertaken in determining whether the limbs are satisfied, it would be relevant to the exercise of the discretion whether to make an order.
The Coroner’s reasons
The Coroner set out the context of the inquest.
The Coroner said in relation to the topics intended to be canvassed at the inquest:
1.5.In this case, the pursuit was initiated in Morphett Vale after the vehicle was said to be travelling at 79 kilometres per hour in a 60 kilometres per hour zone. The reason given for initiating the pursuit was described as ‘failure to stop’. There is a degree of ambiguity about how this assessment was made.
…
1.9.Although the inquest was listed to proceed on the papers, after reviewing the material I indicated an intention to hear some evidence from the pursuing officer Brevet Sergeant A and also the Pursuit Commander, Steven D. The topics which would be canvassed included those surrounding the decision taken to initiate the pursuit and to continue it thereafter, as well as the way in which the pursuit was supervised in compliance with the General Order for ‘operational safety high risk driving’.
1.10.The evidence indicates that there was a delay of two minutes and nine seconds before the pursuit commander became aware of the pursuit. This was due an error by the communications centre operator (Tracy B) who received the radio advice from Brevet Sergeant A but failed to notice that the notification alarm had not been properly activated. Once it was recognised and rectified, the pursuit was well underway. One of the matters to be inquired into is the extent to which this delay may have compromised the opportunity to reflect upon whether the pursuit should have been abandoned, taking into account relevant competing factors.
The Coroner addressed the discovery by the Court of the IIS investigation and the response of the Commissioner to the Court’s request for production of its report. The Coroner said:
1.11.The Court was unaware that an internal police investigation had been initiated involving Brevet Sergeant A’s role in the matter until my request for his attendance at the inquest was made.
1.12.If I had proceeded to finalisation on the papers alone, it seems unlikely that the Court would have been informed about the internal investigation. Confidence in the Commissioner’s role in assisting this Court is potentially undermined as a result.
1.13.After being informed about the investigation belatedly, this Court accommodated requests for adjournment for the investigation to be completed in the expectation that the Court would be advised at least about the topics canvassed as they related to this inquest. My request to the Commissioner for the investigation report was declined.
1.14.There is nothing disclosed in the investigation brief received from SAPOL, which might give rise to concerns about the actions of any police officer. I have been provided with no information about the investigation except for advice communicated to me by counsel assisting, that the coroner’s investigating officer’s conclusions in his report prepared for inquest would remain unchanged.
1.15.In an inquest in relation to a death in custody, such a circumstance, if unexplained, would properly give rise to a perception that information known to SAPOL was withheld from the Court. It is clear that I am being asked by SAPOL to accept an assurance that this information was of no consequence.

The Coroner addressed the interest of the Court in the IIS Investigation. The Coroner said:
1.16.In the report at page 13, Sergeant Murray expresses the view that Brevet Sergeant A’s actions were appropriate and complied with General Orders.
1.17.The fact that an internal investigation was commenced suggests the contrary, namely that there was material, not disclosed to the Court, which gave rise to concerns about the actions of the police officer which justified the undertaking of an internal investigation.
1.18.Unless I have an opportunity to examine the material canvassed in the internal investigation, including the final report of the investigation, I will not be able to satisfy myself that all relevant material pertaining to this inquest has been disclosed. I fear that my ability to make recommendations concerning high speed police pursuits may be compromised by the Commissioner’s refusal to fully co-operate with this inquest.
The Coroner referred to the written submissions from counsel, the provisions of section 23(1)(b) of the Coroners Act and section 44 of the Discipline Act and the legislative intent of both Acts.
The Coroner said in relation to section 44(d):
1.21.In my view, this Court is not precluded from ordering production of internal investigation related documents in circumstances in which the statutory criteria are satisfied.
1.22.I am satisfied that in this inquest, there are special reasons requiring the making of an order.
1.23.In relation to special reasons, in broad terms, I accept the submissions of counsel assisting set out in paragraphs 16-25,but noting paragraph 18 in particular. In my view, the special nature of the subject matter of a death in custody would in most cases satisfy the statutory criteria in section 44 of the Police Complaints and Discipline Act, if it emerged that there was an internal investigation into police conduct and that SAPOL withheld information about it from the Court.
1.24.In the context of the coronial jurisdiction, the interests of justice contemplate the importance of the Court being able to confidently reach accurate findings of fact which will assist in understanding why the death occurred and how it might have been prevented. It is fundamental to the inquisitorial function that this Court performs.
1.25.Upon undertaking the necessary balancing exercise, I conclude that the need to ascertain and demonstrate that all relevant material has been available to the coroner in reaching findings as to the cause and circumstances of the death of Ms Philp, should predominate over the reasons advanced on behalf of the Commissioner for the withholding of the information.
1.26.Accordingly, I am satisfied in this case that the interests of justice cannot adequately be served except by the making of such an order.
Counsel assisting in his written had submissions addressed special reasons at paragraphs 16 to 29. At paragraphs 19 to 24, he addressed the authorities, namely Ferri and White (which are summarised above). At paragraphs 16 to 18 and 25 he submitted:
1.16.I respectfully submit that ‘special reasons’ exist in a mandatory coronial inquest in circumstances where the death was a death in police custody; and it is known, or expected, that an internal investigation was conducted under the Police Complaints and Discipline Act 2016 in relation to the events that led to the death of the person being investigated by the Coroner.
1.17.An inquest is by its very nature ‘inquisitorial’. Unlike in civil or criminal proceedings where the disclosure of such material may be considered no more than a ‘fishing expedition’. There is an important distinction between a court seeking the production of material in the context of an inquest as compared with a party to civil or criminal proceedings.
1.18.In this matter, the Court has been advised that an internal investigation was conducted. The Court was informed of the internal investigation only after the Commissioner of Police was advised that Brevet Sergeant A would be required to give evidence at the inquest. If that officer had not been required to give evidence the Court wouldn’t have known of the internal investigation. An adjournment was sought by SAPOL for the internal investigation to be conducted. That adjournment was granted. The investigating officer’s report does not refer to any internal investigation, nor does it raise any issues that would give rise to a concern about the actions of the involved police officers. The fact that an internal investigation occurred in these circumstances gives rise to a ‘special reason’ as the Court is entitled to know what that investigation involved and why those issues were not raised in the material that was provided to the Court.
…
1.25.What stands out in the matter before this Court as ‘out of the ordinary, as distinctive or particular about the case, and as carrying some weight’ is not some particularity or difference between the parties. It is the context in which the material is sort that requires the making of an order. It is not necessary that the case be extremely unusual, uncommon or exceptional (Secretary, Department of Social Security v Hodgson [1992] FCA 338).
Judicial review principles
There is no dispute about the applicable judicial review principles. The issue is whether the Court made a jurisdictional error by misapprehending the limits of its powers by virtue of section 44(d) of the Discipline Act (ground 1) or had regard to an impermissible consideration (ground 2).
In Craig v The State of South Australia[28] Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”…
…
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
… an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.[29]
[28] (1995) 184 CLR 163.
[29] At 175-178.
Misapprehension of the test: special reasons limb
The first ground on which the Commissioner seeks judicial review is that, in making the order for the issue of the subpoena, the Coroner misapprehended and/or misapplied section 44(d) of the Discipline Act.
The Commissioner contends that the Coroner misapprehended and/or misapplied section 44(d) in concluding that she was satisfied that there were special reasons requiring the making of the order.
The Commissioner makes several contentions under this heading, some of which overlap with others. Notwithstanding that overlap, it is convenient to deal with the contentions under their own subheadings.
Blanket approach to satisfaction of test
The Commissioner contends that, on the proper construction of her reasons, the Coroner concluded that the first limb (special reasons) is satisfied by the mere fact that the Coroners Court is conducting an inquest into a death in custody and an internal investigation has been conducted by SAPOL which has not been provided to the Court.
The Commissioner contends that neither separately nor together do these matters (alone) amount to special reasons. The Commissioner makes an allied contention (addressed under the next subheading below) that, to the extent that the Coroner found that there were special reasons (being the first step referred to at [109] above), the Coroner failed to proceed to the second step and find that the special reasons required making of an order.
First the Commissioner submits that, to the extent that the Coroner understood that section 44(d) operates to create a special exception for the Coroners Court, she erred. The Commissioner points to the fact that paragraphs (b) and (c) of section 44 create special exceptions for Royal Commissions, the Independent Commissioner (now Commission) Against Corruption and the Office of Public Integrity: those bodies can require the divulging of information without satisfaction of the special reasons or interests of justice criteria contained in section 44(d) or any explicit criteria.[30] By contrast, there is no special exception in respect of the Coroners Court and hence the mere fact that the requirement is imposed by the Coroners Court will not satisfy the special reasons test (or the interests of justice test).
[30] Likewise, under section 44(a), a court or tribunal hearing a proceeding in respect of an offence or breach of discipline can require the divulging of information without satisfaction of the special reasons or interests of justice criteria contained in section 44(d) (provided that the proceeding relates to a matter the subject of the disciplinary investigation).
I accept that the mere fact that a requirement to divulge information made under section 44 is made by the Coroners Court does not automatically entail that the special reasons test (or the interests of justice test) is satisfied. However, this does not entail that it is not a relevant factor in the application of the special reasons test. On the contrary, there is a marked difference between a party in adversarial litigation (whether civil or criminal), acting solely in its own self-interest, issuing a subpoena in adversarial litigation for the production of documents relating to an IIS Investigation and the Coroners Court, which performs an independent inquisitorial function, issuing a subpoena for the production of such documents for the purposes of an inquest.
In addition, ordinarily if a party to civil or criminal litigation obtains documents under a subpoena, that party is at liberty to tender documents or question witnesses in relation to them in open court.[31] By contrast, if the Coroners Court obtains documents under a subpoena, the documents will only be available to and under the control of counsel assisting and the Coroner in the first instance rather than any parties appearing at the inquest. They may not be tendered and if they are they could be tendered in closed court and in the absence of any parties appearing.
[31] A court will have power to make an order closing the court, or to make a suppression order, under the Evidence Act 1929 (SA) but the protection of confidentiality in the material will generally be destroyed or impaired.
Given the nature of the inquisitorial function performed by the Court and the fact that it is not seeking to advance its own interests (in contrast to a party in civil or criminal adversarial litigation) but is seeking to ascertain the cause or circumstances of the relevant death,[32] it is more likely that the special reasons test will be satisfied but nevertheless each case must be considered by reference to its own circumstances.
[32] Or disappearance, fire, accident or other matter referred to in section 21(1)(b)(ii) to (iv) or (c) of the Coroners Act that is the subject of the inquest.
The Coroner did not conclude that the mere fact that the requirement was being made by the Coroners Court automatically entailed that the special reasons test was satisfied. On the contrary, the Coroner merely considered this as one factor in conjunction with other factors (including the matters addressed below).
Secondly the Commissioner submits that the special reasons test could not be satisfied merely by reason of the fact that the information was being sought for the purposes of a mandatory inquest concerning a death in custody.
I accept that the mere fact that a requirement is made in an inquest into a death in custody does not automatically entail that the special reasons test (or the interests of justice test) is satisfied. Again, this does not entail that it is not a relevant factor in the application of the special reasons test. On the contrary, the type of death in custody in the present case is that it occurred in the course of a person evading apprehension by the police. In such cases, the role of the police in seeking to apprehend the person in relation to the death will be the major focus of the inquest into the cause and circumstances of the relevant death. This makes it more likely that the special reasons test will be satisfied but nevertheless each case must be considered by reference to its own circumstances.
The Coroner did not conclude that the mere fact that the requirement was being made in an inquest into a death in custody automatically entailed that the special reasons test was satisfied. On the contrary, the Coroner merely considered this as one factor in conjunction with other factors (including the matter addressed above and the matters addressed below).
Thirdly the Commissioner submits that the special reasons test could not be satisfied merely by reason of the fact that there had been an internal investigation by SAPOL concerning the conduct of its officers.
I accept that the mere fact that there had been an internal investigation by SAPOL concerning the conduct of its officers does not automatically entail that the special reasons test (or the interests of justice test) is satisfied. Again, this does not entail that it is not a relevant factor in the application of the special reasons test. It will typically be highly relevant when the subject of that investigation is the conduct of police officers involved in the pursuit.
The Coroner did not conclude that the mere fact that there had been an internal investigation by SAPOL concerning the conduct of its officers automatically entailed that the special reasons test was satisfied. On the contrary, the Coroner merely considered this as one factor in conjunction with other factors (including the matters addressed above and the matters addressed below).
Fourthly the Commissioner submits that the special reasons test could not be satisfied merely by reason of the three factors mentioned above operating in conjunction.
On the one hand, I accept that a court considering whether to require the divulging of information under section 44(d) must have regard to the individual circumstances of the case and cannot proceed on a blanket basis that the special reasons test will be satisfied in all cases in which certain factors are present regardless of the individual circumstances. However, where the Coroners Court is conducting an inquest into a death in custody that occurred in the course of pursuit by the police of a person evading apprehension, IIS has conducted an investigation into the conduct of officers involved in the pursuit and the information disclosed or obtained in the course of that investigation is not produced voluntarily to the Court, it may be expected that in most cases the special reasons test will be satisfied (after the Court has had regard to the individual circumstances). The very fact that the Court is conducting an inquisitorial process to ascertain the cause and circumstances of the death which occurred in the course of the pursuit and there has been an investigation into the conduct of those officers tends (without being definitive) to take “the circumstances out of the ordinary” and “carry particular or significant weight” and suggests that the individual circumstances are likely to require disclosure and hence make it more likely that the special reasons test will be satisfied. Again, this is not a blanket proposition and each case must be considered by reference to its own circumstances.
The Coroner did not conclude that the mere fact that the Coroners Court was conducting an inquest, in an inquisitorial process, into a death in custody in the course of police pursuit, the Internal Investigation Section had conducted an investigation into the conduct of officers involved in the pursuit and the information disclosed or obtained in the course of that investigation was not produced voluntarily to the Court automatically entailed that the special reasons test was satisfied.
The Commissioner refers to the fact the Coroner said at paragraph 23 of her reasons (extracted at [118] above]) that “the special nature of the subject matter of a death in custody would in most cases satisfy the statutory criteria in section 44 of the Police Complaints and Discipline Act, if it emerged that there was an internal investigation into police conduct and that SAPOL withheld information about it from the Court” (emphasis added). However, the Coroner merely said that these matters would “in most cases” satisfy the criteria: she did not say that in all cases they would satisfy the criteria or that it was unnecessary to consider the individual circumstances of the case. This was in contrast with the submission of counsel assisting at paragraph 16 of his written submissions (extracted at [119] above) that in all cases these matters satisfy the criteria. The fact that the Coroner said that these matters would only satisfy the criteria in most cases necessarily required consideration of the individual circumstances of the case. The Coroner did consider the individual circumstances of the case as summarised at [143] to [149] below. For the reasons given above, I agree with the Coroner that it may be expected that in most cases special reasons will be satisfied if these factors are present (but nevertheless it is necessary to consider the individual circumstances of the particular case).
The Commissioner submits that the only consideration of special reasons by the Coroner was at paragraph 23 and it follows that the Coroner did not consider any matters other than those mentioned in paragraph 23. I reject that submission. It does not have regard to the whole of the Coroner’s reasons or to the context of paragraph 23 in those reasons.

The material before the Coroner included the statement by the Commissioner’s solicitor in her 7 July 2020 letter that the conclusion of the IIS Investigation necessitated a further review of the conclusions reached in the SII Report. She also referred to the possibility of penalty privilege being invoked. It is apparent, for the reasons identified above, that there was necessarily an overlap between the subject of the MCIS investigation the subject of the SII Report and the new IIS Investigation. These statements by the Commissioner’s solicitor confirmed this. It was apparent therefore that the IIS Investigation addressed matters relevant to the inquest.
It is likely that matters addressed by the IIS Investigation included the decision by Brevet Sergeant A to initiate and continue the pursuit and his assessment of the benefit and risks therein; the mistakes made by Constable B in relation to the non-operation of the alarm button and entry of information into the wrong incident number; and/or the way in which the pursuit was supervised or not supervised in compliance with the General Order.
The material before the Coroner included the expressions of opinion by Senior Sergeant Murray in the SII Report that Brevet Sergeant A complied with the General Order and that the non-activation of the alarm in the Police Communications Centre did not affect management of the pursuit. The making of the reports under section 12 of the Discipline Act and the fact of a subsequent investigation over four months indicated, as the Coroner observed at paragraph 17 of her reasons (extracted at [116] above), that there were reasons to doubt the definitiveness of these expressions of opinion and that these reasons justified undertaking an IIS Investigation.
In these circumstances, the Coroners Court was conducting an inquest into a death that occurred in the course of police pursuit where the IIS had conducted an investigation into matters highly relevant to the inquest. On the material before the Coroner, there were special reasons for making an order for production of the material. In the words of Doyle CJ (with whom D J relevantly agreed) in White v State of South Australia,[34] the reasons for production of the material were “out of the ordinary, relate[d] to something … distinct or particular about the case, and carr[ied] particular or significant weight”.
[34] [2007] SASC 75 at [49].
On the material before the Coroner, there were special reasons that required the making an order for production of the material. As the Coroner observed at paragraphs 17, 18, 24 and 25 of her reasons (extracted at [116] and [118] above), in order to perform her statutory functions, there was a need to obtain relevant material now known to exist bearing on findings about the cause and circumstances of Ms Philp’s death and potential recommendations and that need predominated over reasons for maintaining the confidentiality of the information.
Most of the reasons identified by Doyle CJ in White v State of South Australia[35] for maintaining the confidentiality of the material (extracted at [103] above) did not apply. There were no complainants to protect or encourage. The IIS Investigation had been completed and there was no issue of persons under investigation having the opportunity to destroy or conceal material or put their heads together. There were no crimes being investigated by the police force that might be prejudiced. There was no adverse outcome of the investigation in terms of disciplinary matters. The internal operations of the police force scrutinised in the IIS Investigation were not inherently confidential. The only remaining matter identified by Doyle CJ was that there may in some cases be a need to keep confidential the investigation methods used by IIS but no evidence was adduced before the Coroner about this and it does not seem inherently likely that this would have been significant in this particular case. The general reasons for maintaining confidentiality in relation to IIS Investigations were not such as to entail that special reasons did not require the making of an order for production of the material in the present case.
[35] [2007] SASC 75.
The Commissioner contends that the fact that the outcome of the IIS Investigation was that no further action was required and the fact that the SII Report remained unchanged entailed that the material the subject of the subpoena was wholly irrelevant to the functions required of the Court. For convenience, I address this under the next subheading. For the reasons there given, this contention is fallacious.
On the materials before the Coroner, there were special reasons that required the making of an order for production of the material and it follows that it was open to the Coroner to be satisfied that there were special reasons that required the making an order for production of the material.
I reject the Commissioner’s contention under this subheading.
Outcome of IIS Investigation
The Commissioner contends that the fact that the outcome of the IIS Investigation was that no further action was required and the fact that the SII Report remained unchanged entailed that the material the subject of the subpoena was wholly irrelevant to the functions required of the Court. If this contention is established, it would entail that it was not open to the Coroner to be satisfied that special reasons required the production of the material. (It would also entail that the Coroner exceeded her jurisdiction under the Coroners Act, which is the subject of ground 2).
In her affidavit sworn on 13 November 2020, Ms Sloan said that she was instructed that the SII Investigation into the conduct of certain officers involved in or associated with the pursuit of Ms Philp undertaken under the Discipline Act determined that no further action was required involving any of those officers.
This did not entail that there could not be special reasons requiring production of the material or indeed reduce in any way the need (identified above) for production of that material. This contention does not take into account the nature and purpose of an inquest. Unlike an adversarial proceeding, the role and purpose of counsel assisting is not, in the case of an inquest into a death in the course of a police pursuit, to prove fault by, or deficiencies in the conduct of, police officers involved in the pursuit. It is purely an inquisitorial process to determine the cause and circumstances of the death and any recommendations that should be made. Any material that suggests that there was no fault by or deficiencies in the conduct of police officers involved in the pursuit is just as relevant as any material that suggests that there was. Accordingly, the mere fact that the outcome of the SII Report was that no further action be taken, even assuming (an assumption addressed below) that that entailed a finding that there were no deficiencies in the conduct of those officers involved in the pursuit, does not lessen the relevance of the material.
In addition, the purpose of an IIS Investigation initiated by report under section 12 is to determine whether a police officer has engaged in corruption, misconduct or maladministration. Although incompetence or negligence will usually be an essential element of misconduct or maladministration (assuming the conduct was not intentional), they are not sufficient in themselves. It is an essential element of misconduct (as defined) that there be a contravention of a relevant code of conduct constituting ground for disciplinary action or other misconduct. It is an essential element of maladministration (as defined) that there be conduct constituting substantial mismanagement in the performance of official functions. An IIS Investigation may well find negligence or incompetence by a police officer but not misconduct or maladministration.
In addition, if the IIS Investigation found that there was no negligence or incompetence, the materials disclosed or obtained in the course of the investigation remained relevant to the inquest. As observed above, they may have led the Coroner to find ultimately that there was no negligence or incompetence. However, the Court would not have been bound by the findings and would have been entitled to reach its own conclusion on questions of negligence or incompetence. Moreover, the legitimate interest of the Court was not confined to questions whether police officers involved in the pursuit were negligent or incompetent but extended to the cause and circumstances of Ms Philp’s death involving no negligence or incompetence but involving the conduct of police officers or equipment (for example the alarm button and the police incident part of SACAD) involved in the pursuit.
In her affidavit, Ms Sloan said that she was instructed that the SII Report remained unchanged. There is substantial ambiguity about this statement. It might mean that the IIS investigator(s) who undertook the IIS Investigation concluded that the SII Report did not in their opinion need to be changed. It might mean that the report by the IIS investigator(s) was provided to Senior Sergeant Murray or another officer in MCIS, who reviewed both reports and concluded that the SII Report did not in their opinion need to be changed. It might mean merely that the SII Report was not in fact changed. Further, it begs the question as to what changes (if any) were considered.
Whatever Ms Sloan’s statement might mean, it did not entail that there could be no special reasons requiring production of the material or indeed reduce in any way the need (identified above) for production of that material. For the same reasons as in respect of the outcome of the IIS Investigation itself, the inquest was an inquisitorial process and material suggesting (if it be the case) that there were no deficiencies in the conduct of police officers involved in the pursuit is just as relevant as material suggesting that there were. Similarly, the Court was not bound by any opinion that may have been formed by an investigator of IIS or MCIS concerning whether there were deficiencies in the conduct of police officers involved. The Court was entitled, and indeed bound, to make its own findings on the cause and circumstances of Ms Philp’s death and any relevant recommendations and, for that purpose, to have regard to relevant material legitimately available (subject to section 44 of the Discipline Act) to the Court.
The Coroner did not exceed her jurisdiction under the Coroners Act merely because of the matters referred to by Ms Sloan, nor did those matters entail that it was not open to the Coroner to be satisfied that special reasons required the production of the material.
I reject the Commissioner’s contention under this subheading.
Conclusion
I have considered the Commissioner’s contentions separately and also holistically.
The Coroner did not misapprehend or misapply section 44(d) in concluding that she was satisfied that there were special reasons requiring the making of the order. The challenge under ground 1 insofar as it involves the special reasons limb fails.
Misapprehension of the test: interests of justice limb
The Commissioner contends that the Coroner misapprehended and/or misapplied section 44(d) in concluding that she was satisfied that the interests of justice could not adequately be served except by the making of the order.
The Commissioner makes several contentions under this heading. Many of the considerations relevant to the question whether special reasons require production of the material will generally be relevant also to the question whether the interests of justice could not adequately be served except by the making of the order (ie require production of the material). The Commissioner adopts, in respect of the interests of justice limb, some of the contentions made in respect of the special reasons limb, generally without elaboration. The Commissioner elaborates in respect of this limb on one of the contentions made under the special reasons limb and makes two additional contentions.
Finding that making of order required
The Commissioner contends that the Coroner failed to consider whether the interests of justice could not adequately be served except by making an order.
This is a parallel contention, in the context of the second limb, to the contention made by the Commissioner considered above in the context of the first limb that the Coroner did not consider whether the interests of justice required the making of an order.
The Commissioner contends that at paragraph 25 of her reasons (extracted at [118] above) the Coroner merely weighed the need for production of the material against reasons for not producing it but failed to consider whether the interests of justice required production.
I reject this contention. The Coroner’s reasons need to be read as a whole. At paragraph 24, the Coroner said that making accurate findings of fact to understand why the death occurred and how it might have been prevented was fundamental to the inquisitorial function of the Court. At paragraph 25, the Coroner said that this need predominated over the reasons advanced for withholding the material. At paragraph 26, the Coroner said “Accordingly, I am satisfied in this case that the interests of justice cannot adequately be served except by the making of such an order”. Moreover, these three paragraphs need to be read with and in light of paragraphs 9 to 10 and 14 to 18. It is clear from reading the Coroner’s reasons as a whole that the Coroner did consider and find that the interests of justice could not adequately be served except by the making of an order.
I reject the Commissioner’s contention under this subheading.
Inquiry into why existence of IIS Investigation not disclosed
The Commissioner contends that the Coroner identified the relevance of the material sought as being that it was relevant to why the existence of the IIS Investigation was not disclosed to the Court and the Coroner intended to inquire into that reason. The Commissioner contends that such an inquiry was beyond the jurisdiction of the Court and, to the extent that such an inquiry was a reason for making the order, the interests of justice could not require the making of an order.
For the reasons given above, I reject the Commissioner’s contention that the Coroner identified the relevance of the material as being relevant to the reason why the existence of the IIS Investigation was not disclosed to the Court.
I reject the Commissioner’s contention under this subheading.
Inquiry into why disciplinary proceedings not taken
The Commissioner contends that the Coroner identified the relevance of the material sought as being that it was relevant to the reason why disciplinary proceedings were not taken against officers involved in the pursuit and the Coroner intended to inquire into that reason. The Commissioner contends that such an inquiry was beyond the jurisdiction of the Court.
The Coroner did not say in her reasons that she intended to inquire into this question. On the contrary, she identified the relevance of the material, as summarised above, in quite different terms.
I reject the Commissioner’s contention under this subheading.
Outcome of IIS Investigation
The Commissioner contends that the fact that the outcome of the IIS Investigation was that no further action was required and the SII Report remained unchanged entailed that the material the subject of the subpoena was wholly irrelevant to the functions required of the Court and hence it was not open to the Coroner to be satisfied that the interests of justice required the production of the material.
By way of elaboration, the Commissioner rhetorically asks why the interests of justice could not otherwise be served in circumstances where the outcome of the IIS investigation did not alter the accuracy of the factual assertions made within the SII Report.
For the same reasons as in respect of the special reasons test, I reject this contention.
It is not my understanding that the Commissioner contends more generally that it was not open to the Coroner to be satisfied that the interests of justice required the production of the material other than by reason of the outcome of the IIS Investigation. However, if the adoption (without elaboration) by the Commissioner of contentions made in respect of the first limb in relation to the second limb was intended to encompass a more general contention that it was not open to the Coroner to be satisfied that the interests of justice required the production of the material, I reject that contention for essentially the same reasons as in respect of the first limb.
Coroner not fettered by findings in disciplinary proceeding
The Commissioner contends that, to infer that the Court could not otherwise exercise its function without production of the material entailed that the Coroner reasoned that she was in some way fettered by the findings in a disciplinary proceeding. The Commissioner submits that this is to suggest that the function of the Court is intrinsically related to knowing the basis of a finding as to breach of discipline, which cannot be the case because it is contrary to the very purpose of the Discipline Act to keep such information protected.
I reject this contention. There was no disciplinary proceeding: there was only an investigation by IIS initiated by section 12 reports that did not lead to a disciplinary proceeding. The Coroner did not reason in the manner suggested. On the contrary, the Coroner proceeded on the explicit (and correct) basis that she was not fettered by any findings that may have been made by IIS at the conclusion of the IIS Investigation. The purpose of seeking the material was not to know the basis of a finding as to breach of discipline as such, but to obtain material bearing on the conduct of police officers involved in the pursuit which was relevant to the inquest.
I reject the Commissioner’s contention under this subheading.
Conclusion
I have considered the Commissioner’s contentions separately and also holistically.
The Coroner did not misapprehend or misapply section 44(d) in concluding that she was satisfied that the interests of justice could not adequately be served except by the making of such an order. The challenge under ground 1 insofar as it involves the interests of justice limb fails.
Irrelevant considerations
The second ground on which the Commissioner seeks judicial review is that, in making the order for the issue of the subpoena, the Coroner took into account irrelevant considerations.
The Commissioner relies, in respect of this ground, essentially on two of the contentions advanced under ground 1:
1Information obtained in the IIS Investigation was wholly irrelevant to the functions of the Court because it was determined that no further action was required and no consequential changes were required to the SII Report.
2The Coroner intended to inquire into the reason why disciplinary proceedings were not taken against officers involved in the pursuit and such an inquiry was beyond the jurisdiction of the Court.
Outcome of IIS Investigation
The Commissioner contends that the only evidence before the Coroner was that the IIS Investigation determined that no further action was required involving any of the members who were the subject of the investigation, and no consequential changes were required to the SII Report.
The Commissioner contends that it follows that information obtained in the IIS Investigation was wholly irrelevant to the functions of the Court. Issuing the subpoena was therefore outside the power of the Coroner under the Coroners Act. This contention, advanced under ground 2, does not rely on the Discipline Act.
For the reasons given in respect of ground 1, I reject this contention.
Inquiry into why Discipline proceedings not taken
The Commissioner contends that the Coroner identified the relevance of the material sought as being that it was relevant to the reason why disciplinary proceedings were not taken against officers involved in the pursuit and the Coroner intended to inquire into that reason. The Commissioner contends that such an inquiry was beyond the jurisdiction of the Court. This contention, advanced under ground 2, does not rely on the Discipline Act.

For the reasons given above, it is not necessary to determine whether such an inquiry would be beyond the jurisdiction of the Court. The Coroner did not say in her reasons that she intended to inquire into this question. On the contrary, she identified the relevance of the material, as summarised above, in quite different terms.
I reject the Commissioner’s contention under this subheading.
Conclusion
The Commissioner has not established either ground of judicial review.
I dismiss the Commissioner’s application for judicial review.

[2022] SASC 26

25 March 2022