Commissioner of Police v Coroners Court of South Australia - [2020] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
COMMISSIONER OF POLICE & ORS v CORONERS COURT OF SOUTH AUSTRALIA
[2020] SASC 86
Judgment of The Honourable Justice Kelly
22 May 2020
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - MANDAMUS
Application for judicial review.
The South Australian Commissioner of Police makes an application for judicial review of the Coroner’s refusal to permit certain witnesses from entering and exiting the Coroner’s Court through an entrance other than the public entrance. The Commissioner also seeks review of the Coroner’s refusal of the alternative application to allow the same witnesses to give evidence by way of audio-visual link.
The person who formed the subject of the Coronial inquest was shot and killed by a South Australia Police Special Task and Rescue Group (“STAR”) officer after his hostility increased. His death was pronounced as a “death in custody”, as he died while the officers were in the process of apprehending him. The Coroners Court accordingly held an inquest into his death.
The Commissioner contends that the Coroner misapprehended the nature and extent of the express and implied powers conferred on him by virtue of the Coroners Act 2003 (SA) and the Evidence Act 1929 (SA). The Commissioner further contends that the Coroner failed to take into account relevant considerations, and denied the Commissioner procedural fairness in respect of the application to permit the witnesses to give evidence by way of audio-visual link.
The contradictor, Mellor Olsson, contends that judicial review is not available to the Commissioner.
The Commissioner seeks orders or certiorari and mandamus to quash the decision and remit the matter back to the Coroners Court for the Coroner to decide the Commissioner’s application according to law.
Held:
1.      The Commissioner has not established a reviewable error in respect of the application that was refused by the Coroner on 26 November 2019.
2.      The application for judicial review of the decision made by the Coroner on 26 November 2019 is dismissed.
3.      The application for judicial review of the decision not to permit the witnesses to give evidence by way of audio-visual link on 6 December 2019 is allowed. The Coroner failed to afford procedural fairness to the Commissioner in respect of that application.
4.      The decision of the Coroner made on 6 December 2019 is quashed and the Commissioner’s application is remitted back to the Coroner to be dealt with according to law.
Coroners Act 2003 (SA) s 3, s 7, s 13, s 17, s 19, s 19(1), s 19(2), s 21(1)(a), s 23, s 24, s 24(b); Evidence Act 1929 (SA) s 13, s 13(1), s 13(2), s 59IQ, referred to.
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Commissioner of Police v Coroners Court (SA) (2018) 130 SASR 321; Craig v The State of South Australia (1995) 184 CLR 163; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, applied.
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, distinguished.

COMMISSIONER OF POLICE & ORS v CORONERS COURT OF SOUTH AUSTRALIA
[2020] SASC 86
Civil: Application for Judicial Review
KELLY J.
Introduction

This is an application by the South Australian Commissioner of Police (“the Commissioner”) for judicial review of decisions made by the State Coroner.
The Coroner rejected the Commissioner’s application to allow witnesses, namely, Special Task and Rescue (“STAR”) Group officers, to enter and exit the Coroners Court via a route other than the public entrance and exit. The Coroner also refused the Commissioner’s alternative application to allow the witnesses to give evidence via audio-visual link.
On the judicial review application, the Commissioner contends that the Coroner misunderstood the nature and extent of the jurisdiction and the express and implied powers conferred on the Coroners Court by the Coroners Act 2003 (SA) (“the Coroners Act”) and the Evidence Act 1929 (SA) (“the Evidence Act”). The Commissioner contends that the Coroner’s decision to refuse the applications is vitiated by jurisdictional error.
The Commissioner seeks orders of certiorari and mandamus to quash the decision and remit the matter back to the Coroners Court for the Coroner to decide the Commissioner’s application according to law.
Background
The deceased is Mr Matthew Morgan.
On 21 October 2017, police officers attended the Tollgate Motel to locate Mr Morgan on suspicion of his involvement in a hit-and-run incident that occurred the previous evening. The officers located Mr Morgan inside a room in the motel carrying a shotgun. He told the officers that he was holding his partner hostage. Indeed, his assertion was true.
Mr Morgan threatened the officers, and his partner, with the gun. He fired two rounds of ammunition through a bathroom window and threw alight objects towards the officers from said window. Mr Morgan was under the influence of methylamphetamine and alcohol at the time.
As the gravity of the situation increased, the officers withdrew from the scene. A cordon was deployed, and the STAR Group was contacted.
A number of STAR Group officers arrived at the motel. One of the officers, PR, attempted to de-escalate the situation. After a 48-minute period of negotiation had elapsed, it became clear to the cordon that Mr Morgan’s hostility was not diminishing. An arrest team was established in response.
Shortly after 8.00 pm, Mr Morgan was shot three times by a STAR Group marksman, DA. Mr Morgan died as a result of these shots.
Coronial inquest
Mr Morgan’s death was determined to be a “death in custody”, as he died while the officers were in the process of apprehending him.[1] It is mandatory for the Coroners Court to hold an inquest into a death in custody.[2]
[1] Coroners Act 2003 (SA) s 3.
[2] Coroners Act 2003 (SA) s 21(1)(a).
On 26 November 2019, at a directions hearing for the inquest, counsel for the Commissioner foreshadowed that an application would be made at the next hearing to suppress the names and identities of the STAR Group officers in question. At that hearing, the Commissioner made an application to permit the officers to enter and exit the Court precinct through an entrance other than the public entrance. [Redacted].
The Coroner expressed, and repeated, the view that the anticipated situation was manageable, and did not necessitate the making of orders for DA, or the other witnesses, to enter and exit the Court via a private entrance.
The Coroner refused the application. His reasons were expressed as follows:
I have regard to all of the matters to which I must have regard and undertake the balancing exercise I’ve been asked to undertake, but in the end the application is refused because the infrastructure of this court does not permit any such arrangement to be made in a way which I perceive can properly address the risk that the court will be seen to be biased in the conduct of its business in this particular inquest by admitting a witness or witnesses to the private administrative areas of this court. So the application is refused.
When the hearing of the inquest formally commenced on 3 December 2019, the Coroner granted the suppression orders outlined by the Commissioner at the directions hearing. The Coroner noted that his decision to make those orders was guided by the reasoning of the Full Court in Commissioner of Police v Coroners Court (SA) (“Kuskoff”).[3] He articulated his orders in the following terms:
The first order is an order forbidding the publication of the name of all current and former STAR Operation Section members up to and including the rank of superintendent who are witnesses called in the inquest or who are alluded to in the course of proceedings before the court and of any other material tending to identify any such person including but not limited to images showing the faces of any of those persons.
The second order is that the court be closed during the swearing in of all current and former STAR Operations Section members up to and including the rank of superintendent who are called as witnesses to give evidence in the inquest.
The third order is that all current and former STAR Operations Section members up to and including the rank of superintendent are to be referred to by their initials only during the inquest and that those members are to be referred by their initials only in the transcript.
The fourth order is that witness statements and documents which are tendered in evidence are to be redacted such that the names of all current and former STAR Operations Section members up to and including the rank of superintendent are replaced by their initials only.
The fifth order is an order forbidding the publication of the evidence contained in the – and I’ll refer to surnames only – the affidavit of [redacted] affirmed on 25 November 2019, of [redacted] sworn on 25 November 2019, [redacted] affirmed on 25 November 2019 and [redacted] affirmed 25 November 2019, including any report of the evidence contained in those affidavits and I order that those affidavits be sealed up and not opened except by order of the court.
[3] (2018) 130 SASR 321.
The Commissioner does not take issue with the making of those orders. Indeed, those orders are not the subject of the judicial review application before this Court.
On 5 December 2019, the Commissioner renewed the application that was refused by the Coroner on 26 November 2019.[4] In renewing that application, the Commissioner also raised an alternative application that the STAR Group officers be permitted to give evidence by way of audio-visual link.
[4] See paragraph [14] of this judgment.
The Coroner observed that no such application had been made by the Commissioner in Kuskoff.[5] Notwithstanding cogent submissions made by counsel then appearing for the Commissioner in this inquest, the Coroner refused the applications on the morning of 6 December 2019, stating:
I refuse the first part of the application. I have not been able to secure another courtroom in the circumstances or upon conditions which would allow me to permit these witnesses to enter and leave by a private entrance. In addition, the same reasons for which I refuse the application in the first instance continue to apply.
The alternative application to allow these witnesses to give evidence from outside the courtroom transmitted to the courtroom via CCTV is also refused. There are many exhibits in this case; I anticipate that many if not all witnesses in question will be required to have reference to exhibits, including photographs and CCTV. It is not practicable in the circumstances of this case to provide witnesses with the necessary access to exhibits and ability to mark and refer to them if they are giving evidence from a CCTV suite or some other place.
In addition, I note that these are not vulnerable witnesses. It is for vulnerable witnesses that the legislative provisions allowing such an approach and the use of the facilities have been developed. That of itself is not why the application is being refused, to be clear.
I’ve stated that it seems to me that upon delivery of such a witness in King William Street, any such witnesses could take such steps as deemed necessary to ensure that their faces are not seen or photographed. I would take no issue, for example, with such a witness exiting a vehicle and walking across the footpath wearing a mask. It has been submitted to me – I’m sorry, it has been put to me by affidavit that such a requirement is unreasonable. I disagree. I consider that it is in fact straightforward and in my opinion is a complete solution to the problem perceived by SAPOL.
Furthermore, it would be capable of ready public explanation in the event SAPOL should wish to do so. The explanation has already been the subject of publication in the judgment of the Full Court in Commissioner of Police v Coroners Court of South Australia, the 2018 judgment that has been sometimes known in this court as the Kuskoff judgment, and accordingly is already in the public domain.
[5] (2018) 130 SASR 321.
Application for judicial review
The Commissioner now seeks a review of the Coroner’s decisions. In particular, the Coroner’s refusal to allow the STAR Group officers to enter and exit the Court other than by public entrance, and his refusal to permit the officers to give evidence by way of audio-visual link.
The Commissioner asserts that the Coroner made jurisdictional errors by failing to take into account relevant considerations, specifically:
i)the unchallenged evidence of risk of undue hardship to the officers, and the families of those officers;[6]
ii)the interests of national security;[7]
iii)[Redacted];[8] and
iv)that a confrontation [redacted] may lead to a range of consequences, such as the attraction of unnecessary public attention, the filming or photographing of the incident by, for example, a passer-by, and, as a result, the publishing of that film or photograph on a media platform, which may, in turn, lead to the identification of DA as the shooter.[9]
[6]    See ground 1.1 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
[7]    See ground 1.2 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
[8]    [Redacted].
[9]    See ground 1.6 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
The Commissioner also complains that the Coroner made a number of jurisdictional errors in not permitting the STAR Group officers to give evidence by way of audio-visual link.[10] The Commissioner contends that, in refusing that application, the Coroner misapprehended the nature and extent of the powers conferred on the Coroners Court by virtue of ss 13, 23 and 24(b) of the Coroners Act and ss 13 and 59IQ of the Evidence Act. The jurisdictional errors identified by the Commissioner in respect of this refusal are similar to those outlined in relation to the refusal of the first application.[11] The Commissioner complains additionally that the Coroner:
i)failed to undertake any balancing exercise between the risk of undue hardship to the officers and the principles of open justice;[12]
ii)misunderstood the nature of the discretion conferred upon him by s 13 of the Evidence Act;[13]
iii)found that the officers were not vulnerable witnesses, despite evidence which supported the contrary;[14] and
iv)took into account an irrelevant consideration in his decision-making process, specifically, that there was a large volume of exhibits which would render their production, along with any reference to, or marking of, them by the witnesses, an impractical and laborious exercise if such tasks were to be undertaken over audio-visual link;[15] and
v)failed to have regard to the discretion conferred upon him by s 13(2) of the Evidence Act; that evidence could be given outside of Court by means of audio-visual link.[16]
[10] See ground 2 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
[11] See grounds 2.1 and 2.2 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
[12] See ground 2.3 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
[13] See grounds 2.4 and 3 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
[14] See ground 2.5 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
[15] See ground 2.6 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
[16] See ground 4 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
The Commissioner contends that, in refusing that application, the Coroner denied the Commissioner procedural fairness as the Commissioner was not afforded the opportunity to make submissions in reply to the Coroner’s view that giving evidence in such a way was impractical.[17]
[17] See ground 5 of the Commissioner’s Second Statement of Grounds, dated 7 April 2020.
The contradictor, Mellor Olsson, contends that judicial review is not, in the circumstances, available.
The contradictor argues that the orders sought were not expressly authorised by any head of statutory power under the Coroners Act. Properly characterised, the refusals of the Coroner are not orders, nor do they form a judgment. Rather, they are “incidental rulings” made in the course of a hearing pursuant to the Coroner’s inherent power to control the Court’s own processes.[18]
[18] The definition of “incidental ruling” relied upon by counsel for the contradictor was extracted from Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127-128 (King CJ).
The contradictor argues that, as a result, and in the absence of any statutory direction, it is for the Coroner, not a court of review, to determine which factors must be considered, along with the appropriate weight to be afforded to those factors in making any ruling.
The contradictor further submits that the absence of an identifiable head of statutory power authorising the Coroner to grant the Commissioner’s applications gives rise to a further question: does the Coroner have the power to control the means of entry into, and exit from, the Coroners Court?
The contradictor argues that it is for the Courts Administration Authority (“CAA”), as opposed to a court, to accede to any request for a witness to attend court through an alternative entrance. The rationale being that the CAA has direct control and decision-making capabilities regarding questions which pertain to the configuration and allocation of the court facilities.
For these reasons, the contradictor maintains the position that neither of the decisions made by the Coroner are susceptible to judicial review.
Relevant principles and statutory provisions
In Craig v The State of South Australia, the High Court discussed the nature and scope of the remedy sought in these proceedings:[19]
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”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it …
…
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.
Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, 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.
[Footnotes omitted]
[19] (1995) 184 CLR 163 at 175-178 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) (“Craig”).

This Court’s limited role in reviewing the exercise of the Coroner’s discretion must be borne firmly in mind at all times. The role of a superior court in this regard was perhaps most clearly expressed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited:[20]
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd. v. MacKellar; Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd.; Elliott v. Southwark London Borough Council; Pickwell v. Camden London Borough Council. I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it …
[Footnotes omitted]
[20] (1986) 162 CLR 24 at 40-41.
In the later decision of Kirk v Industrial Court of New South Wales,[21] the Court expanded on the earlier comments made in Craig:[22]
[71]… The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.
[72]First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that 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” (emphasis added). Secondly, the Court pointed out that jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers” (emphasis added). (The reference to “theoretical limits” should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern” and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks’ Union.
[73]As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.
[Footnotes omitted]
[21] (2010) 239 CLR 531 at 573-574 [71]-[73] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[22] (1995) 184 CLR 163 at 175-178 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The starting point for analysis of the complaints made by the Commissioner in this instance must therefore be found in the Coroners Act itself.
The Coroner has, amongst other powers and functions, the function to administer the Coroners Court and to oversee and co-ordinate coronial services in this State.[23] The other powers and functions of the Coroner include the power to hold inquests to ascertain the cause or circumstances of prescribed events,[24] sit at any place and time as he may direct,[25] and summons a person and require that person to appear before the inquest.[26]
[23] Coroners Act 2003 (SA) s 7.
[24] Coroners Act 2003 (SA) s 13.
[25] Coroners Act 2003 (SA) s 17.
[26] Coroners Act 2003 (SA) s 23.
The Coroner is also required to hold open inquests.[27] This requirement is, however, subject to the exceptions outlined in Part 8 of the Evidence Act and s 19(2) of the Coroners Act. Section 19(2) specifically empowers the Coroner to exercise powers related to the clearing of courts and the suppression of evidence if the Court considers it desirable to do so in the interests of national security.
[27] Coroners Act 2003 (SA) s 19(1).
Section 24 governs the principles which apply in holding an inquest. Those principles are as follows:
24—Principles governing inquests
In holding an inquest, the Coroner’s Court—
(a)is not bound by the rules of evidence and may inform itself on any matter as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.
In the Kuskoff matter, this Court discussed the nature and extent of the aforementioned powers.[28] The Court was particularly concerned with the statutory powers pursuant to ss 13 and 19 of the Coroners Act.
[28] (2018) 130 SASR 321.
In determining the issue before it in Kuskoff, the Court held that the Coroner had an implied power to make the orders sought in that case. The Court (per Blue, Stanley and Nicholson JJ) held:[29]
[54]A court exercising powers conferred by statute has powers impliedly conferred by the legislation that governs it. It also has such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred. When a statute confers an express power, it is implicit that it confers ancillary powers as well. These are powers to do any incidental thing which is reasonably necessary to make the express grant of power effective. In Attorney-General v Great Eastern Railway Co the House of Lords held that reasonably ancillary acts, though not expressly authorised by a statutory power, are not to be treated as ultra vires. Of course, a court necessarily is conferred with power to control its own processes and this power is effectively conferred on the Coroners Court by the combination of ss 13 and 24 of the Coroners Act.
[55]The power to make the secondary order is ancillary to the power to make the primary order. The efficacy of the primary order would obviously be frustrated if in open court those officers were referred to by their names or their names were disclosed in the documents tendered in evidence. The implied power derives from ss 13, 19 and 24 of the Coroners Act and s 69 of the Evidence Act and the Coroners Court’s power to control its own processes.
[Footnotes omitted]
[29] (2018) 130 SASR 321 at 338 [54]-[55].
I note that those observations accord with the observations of French CJ in Assistant Commissioner Condon v Pompano Pty Ltd (“Pompano”).[30] In Pompano, French CJ discussed the nature of the inherent power possessed by a court of superior jurisdiction. French CJ observed, with approval, the statement in an academic article that “inherent powers arise at common law whenever they are necessary if the court or tribunal in question is to be able to manage its activities appropriately”.[31] Although the Court in Pompano was concerned with the powers of a court of superior jurisdiction, namely the Supreme Court, I consider that those observations apply equally to the Coroners Court insofar as the powers and functions of the Coroner are derived from statute.
[30] (2013) 252 CLR 38.
[31] Pompano (2013) 252 CLR 38 at [41].
These are the principles and provisions which I now apply in determining the issues which arise in these proceedings.
Analysis
After applying the observations of this Court in the Kuskoff matter, I accept that the Coroner has a wide discretion with regard to the making of the orders sought by the Commissioner.
Grounds of review
The complaints in grounds 1.1, 1.2 and 1.6 of the Commissioner’s Second Statement of Grounds are articulated as failures by the Coroner to take into account relevant considerations of undue hardship to the officers and their families, the interests of national security, [redacted].[32] The complaints in grounds 1.3 and 1.4 are complaints that the Coroner took into account irrelevant considerations, such as the infrastructure of the Court and the risk of perception of bias in the conduct of the Coroner’s business if the applications were to be granted.
[32] The Commissioner’s Second Statement of Grounds will hereon in be referred to as the “Statement of Grounds”.
Ground 1.5 appears to stand alone in that it is articulated as a complaint that the finding that it was not unreasonable for STAR Group officers to wear masks or balaclavas into Court is somehow a consequence of the Coroner’s misapprehension of the nature and extent of the powers, both express and implied, conferred on him by ss 13, 23, and 24(b) of the Coroners Act.
As to the alternative application, that the officers be permitted to give evidence by way of audio-visual link, the complaints in grounds 2.1 and 2.2 of the Statement of Grounds are articulated as complaints that the Coroner failed to take into account relevant considerations, namely the unchallenged evidence of certain police officers concerning the risk of undue hardship to the officers and their families, and the interests of national security. The complaint made in ground 2.3 is that the Coroner failed to undertake any balancing exercise between the risk of undue hardship and the principles of open justice.
The balance of grounds, specifically, grounds 2.4, 2.5, 3 and 4, amount to complaints that the Coroner misunderstood the nature of the discretion and obligations conferred upon him by s 13 of the Evidence Act, and that he determined the application that the officers be permitted to give evidence by way of audio-visual link on the basis of an irrelevant consideration, namely the volume of exhibits, meaning it was not practicable to provide the officers with the necessary access to them. That complaint is repeated in ground 5, wherein the Commissioner also makes the complaint that, in relation to that particular application, the Commissioner was denied the opportunity to make submissions and thus denied procedural fairness.
After analysing the Statement of Grounds, it is evident that the real complaint made by the Commissioner is not that the Coroner failed to take into account relevant considerations, or, on the other hand, took into account irrelevant considerations. Rather, the thrust of the Commissioner’s complaint is that the Coroner failed to accord certain relevant factors sufficient weight and accorded other relevant factors too much weight. That is an important distinction when analysing whether the Coroner’s alleged errors amount to jurisdictional error.
Given the breadth of discretion available to the Coroner, all of the considerations about which the Commissioner now complains were relevant considerations which he was entitled to take into account. All of those considerations had been the subject of the evidence and submissions put before him at the inquest.
As I have stated, ground 1.5 stands alone.[33] It appears to be a complaint that the Coroner’s finding that it was not unreasonable for the officers to wear masks or balaclavas into Court was not a finding that was open to him. I do not consider that ground 1.5 raises any proper ground of judicial review. It is simply another complaint about one of the findings made by the Coroner in determining not to permit the applications.
[33] See paragraph [42] of this judgment,
It is evident from the transcript of proceedings in the Coroners Court that the evidence relevant to each of the considerations mentioned in the Statement of Grounds was put before the Coroner and contemplated by him.[34] Indeed, that evidence and material led to the making of each of the five suppression orders on 3 December 2019.[35]
[34] The transcript of proceedings in the Coroners Court will hereon in be referred to as the “transcript of proceedings”.
[35] See paragraph [15] of this judgment.
As to the complaints made in grounds 2.4, 2.5, 3 and 4, I consider that it is also evident from the transcript of proceedings that the Coroner did not misapprehend the nature and extent of the express or implied powers he possessed under the Coroners Act. He correctly observed that neither s 13(1) nor s 13(2) of the Evidence Act had application to the witnesses. However, although the Coroner did not expressly identify the source of the power, it is clear that he comprehended that he had power to grant either or both of the orders sought.
It appears from the Coroner’s reasons as a whole that his main concern in refusing both applications was that the Court should not be seen to be affording preferential treatment to any witness or class of witnesses, and that it was impractical to make the alternative order as there were too many exhibits.
The Coroner also appears to have been concerned that no similar application was made in the matter of Kuskoff.
Most of the material submitted by counsel at the inquest, and referred to by counsel for the Commissioner on this hearing, came from various doctors and police officers who attested to issues of national security. Their evidence was of a very general nature which provided a proper basis to grant the suppression orders sought.[36]
[36] See paragraph [15] of this judgment.
However, none of that material, including the material pointed to by counsel for the Commissioner during the hearing in this Court from the aforementioned doctors and police officers, provided any reason to conclude that the Coroner failed to take into account the interests of national security when declining to make orders that the witnesses be permitted to enter the Court by a private entrance or, in the alternative, be permitted to give evidence by audio‑visual link.[37]
[37] See paragraph [18] of this judgment.
The basis on which the Commissioner made those applications was not, in truth, centred on issues of national security. [Redacted].
The Coroner’s suggested solution to the anticipated situation was that the officers could don a balaclava or a mask to and from Court. Although the Commissioner, by counsel appearing for the Commissioner at the inquest, argued that the Coroner’s proposed solution was unreasonable, the Coroner was of the view that it was a complete answer to the problem. That view is somewhat surprising in light of the fact that the donning of masks or balaclavas in the fashion suggested by the Coroner would likely attract more attention to the officers, [redacted].
The issue is whether the Coroner, in refusing the application on that basis, made a jurisdictional error which would justify this Court’s intervention.
In spite of the fact that the Commissioner complains that the Coroner’s suggestion that the officers don masks or balaclavas to enter and exit the Court is unreasonable, it was not argued upon this review that his decision in that regard is so unreasonable as to amount to unreasonableness in the “Wednesbury” sense.[38]
[38] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 228-234. See also Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-41 (Mason J).
I bear in mind that this is not an appeal from a decision made by the Coroner. It is an application for judicial review. It follows that, unless the Commissioner can point to a jurisdictional error, as opposed to a mere error in the exercise of the jurisdiction that he had, this Court cannot interfere merely because a different decision might have been reached. That does not provide a proper basis for upholding the Commissioner’s application.
Although I am concerned that the solution proposed by the Coroner is not likely to enhance either the dignity or the reputation of the Coroners Court, I am not prepared to go so far as to say that the basis for the decision to refuse the Commissioner’s application is so unreasonable as to justify this Court’s intervention.
The Coroner had the power to make either of the orders sought. The Coroner also had a wide discretion as to the time and place where he may conduct the sittings of the Court.[39] Accordingly, it was open to the Coroner to investigate whether an alternative court with appropriate facilities was available to accommodate either or both of the applications.[40] These are all practicalities for the Coroner himself to consider as he sees fit. Absent jurisdictional error being established, it is not for this Court to substitute its own view of the correct decision.
[39] Coroners Act 2003 (SA) s 17.
[40] For example, the South Australian District Court.
It follows that I do not consider that the Commissioner has established any of the grounds in paragraphs 2, 3, 3.1 or 4 of the Statement of Grounds.
However, the complaint made in ground 5 raises different considerations.
Procedural fairness
The complaint in ground 5 is that the Coroner failed to afford the Commissioner the opportunity to make submissions on the basis of the impracticality (or otherwise) of permitting the officers to give evidence by way of audio-visual link, and thus denied the Commissioner procedural fairness.
The exercise of the discretion available to the Coroner in respect of the application to give evidence via audio-visual link is highly specific to the facts here. Therefore, it was not to the point to observe what did or did not happen in relation to the Kuskoff matter. [Redacted]. The making of the orders sought by the Commissioner in Kuskoff were supported by the family of the deceased. [Redacted]. The Coroner, in refusing the application on 5 December 2019, did not afford the Commissioner the opportunity to make submissions as to the inherent practicality underlying the orders sought, specifically, to allow the witnesses to give evidence via audio‑visual link. Audio-visual link technology is readily available in South Australian courts and is often utilised, both as a matter of expedience and in circumstances requiring the protection of witnesses.
After reading the transcript of proceedings on 5 and 6 December 2019, I am concerned that the Commissioner was not given any proper opportunity to put forward arguments which might have persuaded the Coroner of the practicality of utilising a technology which is readily available in South Australian courts.

The Commissioner made the application at approximately 3.30 pm during the hearing on 5 December 2019 following which there was some argument. During that argument, the Coroner noted that there were “a large number of photographic exhibits”, and, as such, the matter was “not the sort” which “would generally be regarded as conducive to having a witness give evidence off-site by video”. Counsel for the Commissioner responded to the Coroner’s concerns by submitting that the Coroner was, indeed, empowered to allow the witnesses to give evidence in this manner. The Coroner agreed with the Commissioner’s submissions in this respect, stating “the answer is quite simply if I want to do it, I can”. As I have stated, the Coroner did not afford the Commissioner the opportunity to make further submissions which went to the practicality of the application. However, the next morning, at the commencement of proceedings, the Coroner ruled on the application.[41] The transcript of proceedings evinces that the Coroner did not give counsel for the Commissioner any indication that the alleged “large number” of exhibits would be determinative of such an outcome.
[41] See paragraph [18] of this judgment.
Furthermore, contrary to the Coroner’s view that there were “many exhibits” which would need to be shown to the witnesses, explicitly, “170-odd”, counsel for the Commissioner in this hearing submitted there were, in fact, no more than three or four.
Acceding to the application to give evidence by way of audio-visual link could have been made without any derogation of the principle that an inquest must be heard in the open.[42] The Coroner’s expressed concern about the volume of exhibits, if the Commissioner’s submissions are to be accepted, do not appear to be justified. [Redacted].
[42] Coroners Act 2003 (SA) s 19.
Conclusions and orders
In these circumstances, I consider that the Coroner’s somewhat peremptory decision on the morning of 6 December 2019 to refuse the Commissioner’s alternative application does amount to a denial of procedural fairness to the Commissioner.
It follows that the Commissioner has established ground 5 of the Statement of Grounds.
As it is not a function of this Court upon a judicial review to make the orders that should have been made by the Coroners Court, I accept that this matter should be remitted back to the Coroners Court to be dealt with according to law.
It follows, therefore, that the order made by the Coroner on 6 December 2019 refusing the Commissioner’s application for the officers concerned to give evidence by way of audio-visual link is quashed.
I decline to quash the order made by the Coroner on 26 November 2019, as the Commissioner has not established any reviewable error. However, I make it clear that the only reason I decline to quash that order is not because I consider that, on the merits, it should not be, but because I have no power which enables me to do so.
I have considered whether this matter should be remitted to a different Coroner in light of the submissions which surfaced during the argument on this review, specifically, that the Coroner had already made up his mind to refuse the applications. Despite the argumentative tone in some of the Coroner’s exchanges with counsel then acting for the Commissioner, I am not persuaded that he is incapable of bringing a fair and impartial mind to his consideration of any further application which the Commissioner may seek to make.