Commissioner of Police v Coroners Court of South Australia; Commissioner of Police v Australian Lawyers Alliance Ltd
[2018] SASCFC 26
•13 April 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
COMMISSIONER OF POLICE v CORONERS COURT OF SOUTH AUSTRALIA; COMMISSIONER OF POLICE v AUSTRALIAN LAWYERS ALLIANCE LTD
[2018] SASCFC 26
Judgment of The Full Court
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Nicholson)
13 April 2018
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT
MAGISTRATES - CORONERS - APPEAL AND REVIEW
Action for a judicial review and appeal in relation to decisions by a Deputy Coroner declining to make orders closing the court during the swearing in of Star Group officers and associated orders and declining to suppress from publication their names or material tending to identify them respectively.
At the outset of the inquest into the death of Alexander Kuskoff, the appellant Commissioner applied for orders:
1. forbidding the publication of the names and other material tending to identify Star Group officers called to give evidence or alluded to in the course of the inquest;
2. that the Court be closed during the swearing in of Star Group officers;
3. that during the inquest and in the transcript Star Group officers be referred to by their initials only, and
4. witness statements and documents tendered in evidence be redacted to show only the initials of Star Group officers.
The Deputy Coroner declined to make the last three orders sought. This decision is the subject of the judicial review action. The Deputy Coroner subsequently declined to make the first order sought other than to forbid publication of images of Star Group officers. This decision is the subject of the appeal.
In the judicial review action, the Commissioner contends that the Deputy Coroner’s decision is vitiated by jurisdictional error because the Coroner misapprehended the nature and extent of his powers and failed to accord procedural fairness. On the appeal, the Commissioner contends that the suppression order decision is vitiated by various specific errors and in any event by an outcome error.
Held by the Court in the judicial review action:
1. The Deputy Coroner misconstrued provisions of the Coroners Act and misapprehended the nature and extent of the powers of the Court (at [45]-[52]).
2. The Deputy Coroner had power to make orders 3 and 4 sought by the Commissioner (at [53]-[55]).
3. The decision by the Deputy Coroner not to make orders 2 to 4 sought by the Commissioner is vitiated by jurisdictional error (at [57], [59]).
4. Decision by the Deputy Coroner set aside. The Commissioner’s application for orders 2 to 4 is remitted to the Deputy Coroner for hearing and determination according to law (at [104]).
Held by the Court on the appeal:
5. On the proper construction of section 69A of the Evidence Act 1929 (SA), the reference in section 69A(1)(b)(ii) to “civil or criminal proceedings” is to all types of proceedings as defined by section 4 (at [70]-[73]).
6. The Deputy Coroner had power to make a suppression order either to prevent undue hardship to witnesses or potential witnesses or in the interests of national security (at [74]).
7. The decision of the Deputy Coroner is vitiated by a number of process errors and in any event by an outcome error (at [80]-[89]).
8. On the material before the Deputy Coroner, special circumstances existed such that there was a sufficiently serious threat of undue hardship and to the interests of national security to justify the making of the limited form of suppression order sought by the Commissioner (at [87]).
9. Discussion on the power of a court, on an appeal against the making of or refusal to make a suppression order, to make orders on appeal closing the court or otherwise relating to the conduct of the proceedings (at [91]-[103]).
10. Appeal allowed. Order by the Deputy Coroner set aside. Order forbidding publication of the names, images or other material tending to identify Star Group officers called to give evidence or otherwise referred to in the course of the inquest (at [105].)
COMMISSIONER OF POLICE v CORONERS COURT OF SOUTH AUSTRALIA; COMMISSIONER OF POLICE v AUSTRALIAN LAWYERS ALLIANCE LTD
[2018] SASCFC 26Full Court: Blue, Stanley and Nicholson JJ
THE COURT:
This is an action by the Commissioner of Police (the Commissioner) for judicial review of a decision by a Deputy Coroner declining to make orders closing the Court during the swearing in of witnesses who are South Australian Police STAR[1] Group officers and associated orders to keep their names confidential. This is also an appeal by the Commissioner against a decision of the Deputy Coroner declining to make an order suppressing from publication the names of or material (other than images) identifying the officers.
[1] STAR is an acronym for the Special Task and Rescue.
On 5 March 2018 the Deputy Coroner commenced the hearing of an inquest into the death of Alexander Peter Kuskoff. At the outset of the hearing the Commissioner applied for orders that the Court be closed during the swearing in of STAR Group officer witnesses during the inquest; that in the transcript STAR Group officers be referred to by their initials only; and that witness statements and documents tendered in evidence be redacted to show only the initials of STAR Group officers relying on undue hardship and national security grounds (the name reference application). The Commissioner also applied for orders forbidding the publication of the names or other material tending to identify STAR Group officers called as witnesses or alluded to in the course of the inquest relying on undue hardship and national security grounds (the suppression order application).[2]
[2] Pursuant to section 69A of the Evidence Act 1929 (SA).
After hearing submissions in closed court, the Deputy Coroner declined to make the orders sought in the name reference application (the name reference decision). The Deputy Coroner gave reasons in closed court later that day for that decision.
On 6 March 2018 after hearing further submissions, the Deputy Coroner made an order forbidding the publication of images of STAR Group officers called as witnesses or alluded to in the course of the inquest but declined to make an order forbidding the publication of their names or other material tending to identify them (the suppression order decision). The Deputy Coroner subsequently gave reasons in closed court for those orders.
In the judicial review action, the Commissioner contends that the name reference decision is vitiated by jurisdictional error. The Commissioner contends that the Deputy Coroner made jurisdictional errors by misapprehending in several respects the nature and extent of the powers conferred by the Coroners Act 2003 (SA) (the Coroners Act) and the Evidence Act 1929 (SA) (the Evidence Act). The Commissioner also contends that the Deputy Coroner made a jurisdictional error by failing to accord procedural fairness in respect of a consideration taken into account by the Deputy Coroner. The Commissioner seeks an order in the nature of certiorari quashing the decision and remitting the matter to the Deputy Coroner to decide the Commissioner’s application according to law. The judicial review action was referred to the Full Court for hearing and determination.[3] The Coroners Court agreed to abide the result of the action and took no part in it. Australian Lawyers Alliance Limited (ALA) sought and was granted permission to intervene and act as a contradictor in the action.
[3] Pursuant to rule 201(2) of the Supreme Court Civil Rules 2006 (SA).
On the appeal, the Commissioner contends that the suppression order decision is vitiated by House v The King[4] process errors and an outcome error. The Commissioner seeks orders setting aside the Deputy Coroner’s decision and in lieu thereof an order forbidding the publication of the names of or other material tending to identify STAR Group officers called as witnesses or alluded to in the course of the inquest. ALA was joined as a respondent to the appeal to act as a contradictor.
[4] (1936) 55 CLR 499.
Background
Mr Kuskoff died on 16 September 2015 at the farming property near Tailem Bend where he lived. During the inquest opening, counsel assisting the Coroner outlined the evidence proposed to be called including evidence to the following effect. On the late afternoon of 16 September 2015 four local police officers attended at Mr Kuskoff’s property. After discussions with Mr Kuskoff the officers withdrew, deployed a cordon and contacted the STAR Group. A strategy was agreed that Mr Kuskoff be detained under the Mental Health Act 2009 (SA) on the basis that he was suffering from major depression with psychotic features. Subsequently a number of STAR Group officers arrived at the property. Shortly after 11 pm Mr Kuskoff fired several shots. Shortly before 11.30 pm Mr Kuskoff was shot and killed by a STAR Group officer (officer A).
The Deputy Coroner determined that Mr Kuskoff’s death was a “death in custody” within the meaning of section 3 of the Coroners Act on the ground that Mr Kuskoff died while in the process of being apprehended. For the limited purpose of these proceedings, the Commissioner does not take issue with this determination.[5] It is mandatory that an inquest be conducted in the case of all deaths in custody.[6]
[5] The Commissioner reserves the right to contend in the Coroners Court or elsewhere that Mr Kuskoff's death was not a “death in custody”.
[6] Coroners Act 2003 (SA) section 21(1)(a).
On 5 March 2018 at the commencement of the hearing of the inquest, the Commissioner made the name reference and suppression order applications. The orders sought were in the following terms:
1.An order forbidding the publication of the name of all current and former STAR Group officers 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.
2.When STAR Group officers are called as witnesses to give evidence in the inquest, the Court is to be closed during the swearing-in of those witnesses.
3.During the inquest and in the transcript, STAR Group officers are to be referred to by their initials only.
4.The versions of witness statements and documents which are tendered in evidence are to be redacted such that the names of STAR Group officers are replaced by their initials only.
5....
The Deputy Coroner heard from two representatives of and one solicitor for media organisations that they did not oppose the applications. The Deputy Coroner then closed the court during the hearing of the applications.
During the closed court hearing an affidavit by Assistant Commissioner B was tendered. It addressed the topic of the risk of harm to STAR Group officers and their families if their identity becomes generally known or available and the consequential effect upon national security. An affidavit by Dr C, a police psychologist designated to the STAR Group, was also tendered. It addressed the topics of the risk of harm to STAR Group officers and their families if their identity becomes generally known or available and the effects upon officer A if his identity becomes generally known or available.
During the closed court hearing the Deputy Coroner heard submissions from counsel for the Commissioner and counsel assisting the Coroner. The Deputy Coroner announced that he rejected the Commissioner’s name reference application and would give reasons later that day. The Deputy Coroner adjourned until the following day the completion of the hearing of the Commissioner’s suppression order application. Later the same day the Deputy Coroner gave to the parties (on a closed court basis) written reasons for his name reference decision.
On 6 March 2018 the Deputy Coroner granted leave to Ms Liemareff, a sister of Mr Kuskoff, to appear at the inquest on her own behalf and as a representative of her siblings. The Deputy Coroner reiterated in open court his name reference decision made on the previous day. The Deputy Coroner heard submissions in open court on the Commissioner’s suppression order application. Ms Liemareff said that she did not oppose the application. The Deputy Coroner announced his suppression order decision and said that he would publish reasons for it in the next 24 hours. On 8 March 2018 the Deputy Coroner published reasons for his suppression order decision.
On 23 March 2018 counsel assisting the Coroner gave an opening outlining the evidence proposed to be called during the inquest.
The judicial review action
The application by the Commissioner for an order that the Coroners Court be cleared during the swearing in of STAR Group officers was brought pursuant to section 19 of the Coroners Act and section 69 of the Evidence Act.
The orders sought by the Commissioner were to prevent the identities of STAR Group officers from becoming publicly known. The application was made on two separate grounds: first, in the interests of national security; and secondly, in order to prevent hardship to the STAR Group officers who are to give or who may give evidence or be alluded to during the inquest and their families.
The evidence
Assistant Commissioner B has responsibility for SAPOL counter terrorism operations. He is responsible for the STAR Group. In his role, he is regularly briefed on terrorist threats in the Australian and international contexts. Those briefings have included advice concerning the active targeting by terrorist groups in France of the elite police unit that performs a role similar to that of the STAR Group. Terrorist groups actively target such personnel in preference to general duty police as they are considered by terrorist networks to represent “high value targets”.
Assistant Commissioner B deposed to the situation in Australia where the national terrorism threat level was raised to probable on 12 September 2014. That means that credible intelligence, assessed by our security agencies, indicates that individuals or groups continue to possess the intent and capability of conducting a terrorist attack in Australia. The primary threat broadly emanates from small groups or lone actors inspired by Islamist extremists. Since 12 September 2014, 85 people have been charged as a result of 37 counter terrorism operations around Australia.
Assistant Commissioner B said that the terrorism threat level specifically for police was increased in early 2015 when it was assessed by relevant agencies that police personnel, both uniform and civilian, along with police premises, are desirable terrorist targets. That assessment was borne out by a number of planned and actual terrorist attacks. They include the murder of Curtis Cheng, a police accountant, outside Parramatta Police headquarters on 2 October 2015; the stabbing of two counter terrorism police officers outside a police station near Melbourne on 23 September 2014; a plan in April 2015 to run over a police officer with a motor vehicle before beheading the officer and using his gun to shoot members of the public at an Anzac Day service; a threat by a man armed with a knife to kill police in Sydney in June 2017; and the hostage siege in June 2017 in Melbourne where a motel receptionist was murdered and a woman taken hostage before a weapon was fired at three tactical police officers who were wounded. Victoria Police believe that this confrontation was planned with the intention of engaging tactical police officers.
Assistant Commissioner B said that it is his belief that members of the STAR Group are a prime target of potential terrorists in Australia. He considers that images of STAR Group officers and identification of those officers by their names provide valuable intelligence to a threat actor. In his opinion, suppressing the public identification of STAR Group officers’ personal details will assist to mitigate the risks posed to those officers and their families.
Dr C is a qualified psychologist who holds a PhD in clinical psychology and since 2016 has been a police psychologist. Dr C gave evidence that officer A’s and other STAR Group officers’ future effective functioning in high-risk situations could be compromised if their identities were publicly disclosed. She expressed the opinion that, if STAR Group officers’ names were publicly released, that could have a detrimental impact on their decision-making and therefore their functioning. She said that a STAR Group officer properly performing his or her duties in a high-risk situation should not be distracted or compromised. She considered that it is highly likely that officer A’s mental health would suffer if his identity became publicly known, and he would be likely to experience symptoms of hypervigilance out of concern for his own safety and the safety of his family.
None of the contents of the affidavits were contested and neither deponent was cross-examined on their affidavit in the Coroners Court.
The Coroner’s reasons
The Deputy Coroner published reasons for refusing the Commissioner’s name reference application dated 5 March 2018.
The Deputy Coroner said:
There can be no dispute that Mr Kuskoff’s death was a death in custody as contemplated by the Coroners Act 2003 and for that reason section 21(1)(a) of that Act mandates that an inquest into the cause and circumstances of his death is required as a matter of law. As well, section 25(1) of the same Act obliges this court to give its findings in writing setting out as far as has been ascertained the cause and circumstances of Mr Kuskoff’s death. Subject to certain exceptions that I will refer to below, section 19 of the Coroners Act 2003 obliges this Court to conduct an inquest that is ‘open to the public’. A mandatory inquest into the cause and circumstances of a death in custody and which is open to the public shines a public light on the circumstances in which the death occurred. It ensures that a death in custody is investigated, and is seen to be investigated, thoroughly, openly and transparently. It brings accountability to the actions of both the entity under whose authority the custody was imposed as well as to the individual who caused the death of the person concerned. In addition, the public and open inquiry that an inquest is acts [sic] as a check and balance in relation to excessive use of police power or of the power given to other law enforcement agencies in respect of vulnerable persons either in custody or where an attempt is made to take them into custody. One would therefore conclude that public accountability of both the individual law enforcement officer responsible for the death of a person in custody and of the organisation by which that officer is employed is an essential ingredient in a mandatory inquest into a death in custody. The public scrutiny and accountability that a mandatory inquest in an open environment provides is one means by which the safety of an individual whose liberty has been deprived by the forces of the State can be rendered all the more secure. The prospect of public accountability may well cause a law enforcement officer to hesitate in taking lethal action against a person in custody when that lethal action is not indicated or where there is other less lethal action available.
This Court is obliged by law to investigate the circumstances surrounding Mr Kuskoff’s death. As part of that investigation the Court is obliged to identify if possible the person or persons who caused or contributed to that death. In this regard what fell from the. Victorian Court of Appeal in Priest v West and Another [2012] VSCA 327 (20 December 2012) is of significance. This was a judgment on appeal from rulings of a Victorian coroner while conducting an inquest into the disappearance and presumed murder of a 7 year old girl in respect of which a certain individual was a suspect. In the joint judgement of Maxwell P and Harper JA it is stated:
‘If, in the course of the investigation of a death it appears that a person may have caused the death, then the Coroner must undertake such investigations as may lead to the identification of that person. Otherwise the required investigation into the cause of the death and the circumstances in which it occurred will be incomplete, and the obligation to find, if possible, that cause and those circumstances will not have been discharged.’ – at [9].
While it is acknowledged that the above dictum is silent as to whether the identification of the person who caused the death should be a public identification, it nevertheless illustrates the importance that the issue of identification of the responsible person has in the context of a coronial inquest. Its importance would naturally be enhanced in the context of a mandatory inquest into a death in custody. And one would rhetorically pose the question, what is the point of publicly enquiring into the identity of a person who caused a death if there is an embargo on reporting that identity publicly?
…
What then, though, of witness statements that are tendered to the Court without the witness being called to give oral evidence, a procedure that is contemplated within section 20(3) of the Coroners Act which enables this Court to accept evidence in the proceedings from a witness by affidavit or by written statement verified by declaration in the form prescribed by the Rules. Once tendered in open court, the statement is, by virtue of section 37(1)(c) of the Coroners Act, accessible by the public. There is no discretion to disallow or restrict such access. Thus seen, this accessibility is also an element of proceedings that are open to the public. However, it is of note that section 19 of the Coroners Act does not in terms allow this Court to redact the statements of witnesses that might be tendered to the Court by substituting the names of persons referred to in the statement, including the maker of the statement, with the initials of those persons. Redaction cannot sensibly be characterised as clearing the court. Nor can it be characterised as suppression from publication, because once the contents of a statement are redacted there is in reality nothing to suppress from publication. The answer to this difficulty may be that the statements are not redacted but are tendered in a cleared court in which case the State Coroner has a discretion, pursuant to section 37(2)(a) of the Coroners Act, not to permit public access to the statements.
He further said:
If this Court is under an obligation to undertake an investigation that may lead to the identification of the person who caused the death in question, then it would follow that it would only be in the rarest of circumstances that the identify [sic] of that person, once established should be kept from the public. This is so having regard not only to the Coroner’s duty to investigate the issue of the person who caused the death, but to make a public finding as to the same. In my opinion, the same considerations apply to those officers, if any, who may have played a role in assisting or procuring the act that caused the death of the deceased or those who may have been in a position to have prevented that act.
The Deputy Coroner referring to the evidence of Assistant Commissioner B said:
I have given careful consideration to the contents of the closed affidavit of the Assistant Commissioner. The assertion that public identification of STAR Group officers might place those officers and their families in danger is a matter that I have had regard to. Indeed, I have given very anxious consideration to this issue as I have in the past in the matter of Clavell. At the moment, there is no evidence to support those assertions based upon any incident that has occurred, or is likely to occur, in this jurisdiction. That said, I have not underestimated the potential for an adverse incident to occur. I accept that there is a public interest to be served in refraining from publicly identifying police officers of this type where there is no valid or compelling reason to do so. Indeed, I have also given anxious consideration to the need to avoid, in the context of an inquiry such as this and Clavell, compiling and publicly releasing a virtual list of the names of all STAR Group officers. I have also had regard to the other matters identified in the affidavit including but not limited to the difficulty that might ultimately be encountered in securing and retaining suitable personnel within STAR Group, a matter about which there is very little evidentiary support at this point in time. The difficulty is that when balancing the interests of the welfare of STAR Group officers, and in taking into account other relevant considerations as identified in the Assistant Commissioner's affidavit, I also have to take into account in a given inquest the role that those officers had to play in the events that culminated in a given death in custody. This case is different from the Clavell matter where it was evident from the outset, and was not in dispute, that STAR Group officers had a relatively passive role to play in the events that led to the deceased's death. In that inquest I granted an almost identical set of applications made on behalf of the Commissioner. In granting those applications I foreshadowed that in a case in which STAR Group officers had a more active role in the death of a person, the Court's attitude to an application for what is essentially blanket anonymity might well be different. To my mind, the current circumstances are different and dictate that anonymity should be declined in favour of open justice.
The Deputy Coroner, referring to the evidence of Dr C, further said:
To take into account in any meaningful way the material contained in her affidavit would be virtually to signal to [officer A] and all other officers within STAR Group who would normally be required to account for their performance in a given incident that from this point forward their identities will remain secret in any future coronial proceedings regardless of the circumstances and the subject matter of those proceedings. Such a signal would not in any sense be warranted. Indeed, in some ways it would be a very dangerous signal to send and not one that would be in the public interest.
As to [Dr C’s] assertion that the public revelation of the identities of STAR Group officers might compromise their effectiveness in a high-risk operation, in the sense that it might alter the decision-making processes and render officers more hesitant in making crucial operational decisions, this reveals a fundamental misunderstanding of the nature of a mandatory coronial inquest into the cause and circumstances of a death in custody. I have already referred to the fact that the prospect of a mandatory inquiry that is open to the public and one in which individual and corporate accountability is ensured acts as a check and balance on excessive and capricious use of the powers of the State.
Grounds of review
The Commissioner submits that the Deputy Coroner misapprehended the nature and extent of the jurisdiction conferred on the Coroners Court and acted outside the power conferred by sections 13, 19(2) and 37(3) of the Coroners Act and section 69 of the Evidence Act. Further, the Commissioner submits that the Deputy Coroner denied him procedural fairness by taking into account, as a consideration weighing against the clearing of the Court while STAR Group officers are sworn or affirmed and the ancillary orders sought to preserve those officers’ anonymity, that it would “send a signal” to STAR Group officers that their identities will remain secret in any future proceedings regardless of circumstances.
If either contention is made out, the further issue arises whether, as a matter of discretion, relief should be refused.
Relevant principles
Jurisdictional error occurs when a court makes a decision outside the limits of its functions or powers, or does something which it lacks power to do. By contrast, incorrectly deciding something which the court is authorised to decide is an error within jurisdiction. The former kind of error concerns departures from limits upon the exercise of the power, while the latter does not.[7] A bright line between the two, however, can be difficult to identify.
[7] ReRefugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [163], (2000) 204 CLR 82 at 141.
In Kirk v Industrial Court (NSW),[8] the majority of the High Court cited with approval the Court’s earlier judgment in Craig v South Australia[9] in explaining the ambit of jurisdictional error by an inferior court. In their joint reasons, they said:[10]
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.
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.]
[8] [2010] HCA 1, (2010) 239 CLR 531.
[9] [1995] HCA 58, (1995) 184 CLR 163 at 177-180.
[10] [2010] HCA 1 at [72]-[73], (2010) 239 CLR 531 at 573-574 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The remedy of judicial review invoked in this case is only available to require the correction of a category of legal mistake that goes beyond an error within jurisdiction and amounts to a jurisdictional error. In this case, the Court is concerned with whether there was a jurisdictional error of the kind identified in the third example proffered by the majority’s reasons in Kirk.
Relevant statutory provisions
The Coroners Act
The relevant provisions of the Coroners Act are as follows:
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.
19—Inquests to be open
(1)Subject to Part 8 of the Evidence Act 1929 or to any other Act, inquests held by the Coroner's Court must be open to the public.
(2)However, the Court may also exercise the powers conferred on the Court under that Part relating to clearing courts and suppressing publication of evidence if the Court considers it desirable to do so in the interests of national security and, for that purpose, that Part will apply accordingly.
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;
(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.
22—Power of inquiry
(1) The following powers may be exercised—
(a) by the State Coroner for the purposes of determining whether or not it is necessary or desirable to hold an inquest; or
(b) by the Coroner's Court for the purposes of an inquest, namely, powers:
(c) to enter at any time and by force (if necessary) any premises in which the State Coroner or Court reasonably believes there is the body of a dead person and view the body;
(d) to enter at any time and by force (if necessary) any premises and inspect and remove anything in or on the premises;
(e) to take photographs, films and audio, video or other recordings;
(f) to examine, copy or take extracts from any records or documents;
(g) to issue a warrant for the removal of the body of a dead person to a specified place;
(h) to issue a warrant for the exhumation of the body, or retrieval of the ashes, of a dead person (an exhumation warrant);
(i) to direct a medical practitioner who is a pathologist, or some other person or body considered by the State Coroner or the Court to be suitably qualified, to perform or to cause to be performed, as the case may require—
(i) a post-mortem examination of the body of a dead person; and
(ii) any other examinations or tests consequent on the post-mortem examination.
…
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.
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.
(4)The Court must, as soon as practicable after the completion of the inquest, forward a copy of its findings and any recommendations—
(a) to the Attorney-General; and
(b) in the case of an inquest into a death in custody—
(i)if the Court has added to its findings a recommendation directed to a Minister or other agency or instrumentality of the Crown—to each such Minister, agency or instrumentality of the Crown; and
(ii)to each person who appeared personally or by counsel at the inquest; and
(iii)to any other person who, in the opinion of the Court, has a sufficient interest in the matter.
(5)The Minister or the Minister responsible for the agency or other instrumentality of the Crown must, within 8 sitting days of the expiration of 6 months after receiving a copy of the findings and recommendations under subsection (4)(b)(i)—
(a) cause a report to be laid before each House of Parliament giving details of any action taken or proposed to be taken in consequence of those recommendations; and
(b) forward a copy of the report to the State Coroner.
37—Accessibility of evidence etc
(1)Subject to this section, the State Coroner must, on application by a member of the public, allow the applicant to inspect or obtain a copy of any of the following:
(a) any process relating to proceedings and forming part of the records of the Coroner’s Court;
(b) a transcript of evidence taken by the Court in any proceedings;
(c) any documentary material admitted into evidence in any proceedings;
(d) a transcript of the written findings and any recommendations of the Court;
(e) an order made by the Court.
(2)A member of the public may inspect or obtain a copy of the following material only with the permission of the State Coroner:
(a) material that was not taken or received in open court;
(b) material that the Coroner’s Court has suppressed from publication;
(c) a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;
(d) material of a class prescribed by the regulations.
(3)The State Coroner may permit inspection or copying of material referred to in subsection (2) subject to any condition the State Coroner considers appropriate, including a condition limiting the publication or use of the material.
(4)A decision by the State Coroner on an application under this section is final and not subject to any form of review.
(5)The State Coroner may charge a fee, fixed by regulation, for inspection or copying of material under this section.
The Evidence Act
The relevant provision of the Evidence Act is subsection 69(1).
69—Order for clearing court
(1)Where a court considers it desirable in the interests of the administration of justice, or in order to prevent hardship or embarrassment to any person, to exercise the powers conferred by this section, it may order specified persons, or all persons except those specified, to absent themselves from the place in which the court is being held during the whole or any part of the proceedings before the court.
...
Jurisdictional error?
The jurisdiction of the Coroners Court is conferred by section 13 of the Coroners Act. It is to hold inquests in order to ascertain the cause or circumstances of the events prescribed by or under the Coroners Act or any other Act. Section 21 of the Coroners Act prescribes the events into which the Coroners Court must hold an inquest. Subsection 22(1) prescribes the powers conferred upon the Court for the purposes of an inquest. Subsection 25(1) obliges the Coroners Court to give written findings setting out, as far as has been ascertained, the cause and circumstances of the event the subject of the inquest. Section 19 provides that inquests must be open to the public; however, that obligation is subject to the conferral on the Coroners Court of the powers found in Part 8 of the Evidence Act and the further power conferred by subsection 19(2) of the Coroners Act. Subsection 19(2) empowers the Court to make the orders for which Part 8 of the Evidence Act provides on an additional basis, namely when the Court considers it desirable to do so in the interests of national security. Part 8 of the Evidence Act inter alia permits a court to make orders for clearing courts and suppressing the publication of evidence or the name of or material tending to identify a party or witness or a person alluded to in the course of proceedings.
Subsection 19(2) of the Coroners Act expressly refers to powers to clear courts and suppress the publication of evidence. The context and purpose of the provision leads to the conclusion that the expression “suppressing publication of evidence” is to be construed so as to include suppressing the publication of the name of or material tending to identify a relevant person. There is no obvious purpose in construing that expression so narrowly as to deprive the Coroners Court of the power conferred pursuant to Part 8 of the Evidence Act upon it. Rather, there is good reason to conclude that the legislature intended to cloak the Coroners Court with such power. It is a logical corollary of the power to suppress evidence. Neither the Commissioner nor ALA submits to the contrary.
Section 19 of the Coroners Act enshrines two competing interests which must be balanced by the Coroners Court. They are the public interest in open justice on the one hand and, on the other hand, protection of the interests of the administration of justice, prevention of hardship or embarrassment to individuals and preservation of the interests of national security by the clearing of the court or the suppression of publication of evidence.
In this case the Coroners Court is conducting an inquest in order to ascertain the cause or circumstances of the death in custody, within the meaning of subsection 21(1)(a), of Mr Kuskoff. It is to ascertain the cause or circumstances of the fatal shooting of Mr Kuskoff.
It is not in dispute that officer A fired the fatal shot or shots. The duty of the Coroners Court is to conduct an inquest to ascertain the cause or circumstances of officer A using lethal force to cause the death of Mr Kuskoff.
In conducting the inquest it is likely, if not inevitable, that the Deputy Coroner will consider the conduct of officer A and other STAR Group officers and make findings of fact in relation to their conduct.
For the reasons set out above, the Coroners Court is conferred with power to make the orders sought by the Commissioner to clear the Court when officer A or any other STAR Group officer called to give evidence is taking the oath or making an affirmation.
The Coroners Court is also cloaked with power pursuant to section 37 of the Coroners Act to impose conditions on the access by a member of the public seeking to obtain a copy of transcript of evidence that was not taken in open court or material that the Court has suppressed from publication pursuant to section 19. The Court may also order that such access for the purpose of inspection or obtaining a copy of that material only occur when the name of officer A or any other present or former STAR Group officer has been redacted and replaced with initials that identify the officer without naming him or her. This conclusion follows from a proper construction of section 37 of the Coroners Act.
Subsection 37(1) provides that, subject to section 37, the Coroner must allow a member of the public to inspect or obtain a copy of the following documents:
(a) any process relating to proceedings and forming part of the records of the Coroner's Court;
(b) a transcript of evidence taken by the Court in any proceedings;
(c) any documentary material admitted into evidence in any proceedings;
(d) a transcript of the written findings and any recommendations of the Court;
(e) an order made by the Court.
Pursuant to subsection 37(2) a member of the public may inspect or obtain a copy of material that was not taken and received in open court and material that the Court has suppressed from publication only with the permission of the Coroner. Subsection 37(3) confers power on the Coroner to impose any condition the Coroner considers appropriate, including a condition limiting the publication or use of the documentary material, when the Coroner permits inspection or copying of that material identified in subsection 37(2). The power conferred pursuant to subsection 37(3) is sufficient to enable the Coroner to permit the public inspection or copying of material, including transcripts of evidence not taken in open court and witness statements the subject of a suppression order, on the condition that the copy provided to members of the public is redacted in such a way as to replace the names of STAR Group officers with initials.
As it is accepted for the purposes of the Commissioner’s application that Mr Kuskoff’s death fell within the definition of a “death in custody” in the Coroners Act, the Coroner is therefore bound to conduct an inquest into his death. In this sense the Coroner was correct to characterise the inquest as “mandatory”. However, the Deputy Coroner fell into error in the approach he took in dismissing the Commissioner’s application to prevent the ascertainment by the public of the names of those officers based on his conception of the essential ingredients of such a “mandatory” inquest.
The Deputy Coroner reasoned that the purpose of the duty imposed by section 19 of the Coroners Act to conduct an inquest that is open to the public is to provide public accountability of both the police officer or officers responsible for the death of a person in custody and SAPOL as the employer of those officers. The approach of the Deputy Coroner conflates public accountability of a person involved in the death of Mr Kuskoff with public disclosure of that person’s name. To approach the consideration of the Coroners Court’s jurisdiction in that way necessarily results in a refusal of the Court to exercise the powers conferred by section 19 of the Coroners Act to close the Court and suppress the publication of evidence and individuals’ names.
Section 19 confers power upon the Coroners Court to do any or all of closing the Court or suppressing publication of evidence when it is desirable to do so in exercising the Coroners Court’s jurisdiction pursuant to section 13 to hold an inquest in order to ascertain the cause or circumstances of Mr Kuskoff’s death. The reasons of the Deputy Coroner disclose an approach predicated on the proposition that the Court could only exercise the jurisdiction conferred by section 13 by denying itself the very powers conferred by section 19 to close the Court or suppress the publication of evidence or individuals’ names. The scheme of the Coroners Act is conditioned on the proposition that the closing of the Court or the suppression of publication of evidence or of individuals’ names can occur in the course of an inquest in order to ascertain the cause or circumstances of a person’s death. In approaching consideration of the Commissioner’s application in the way he did, the Deputy Coroner misconstrued the relevant provisions of the Coroners Act and thereby misconceived both the nature of the function which the Court was performing and the extent of its powers in the circumstances of this case.
In ascertaining the cause or circumstances of Mr Kuskoff’s death, the Coroners Court is not obliged to publicly name officer A or other STAR Group officers involved in Mr Kuskoff’s death. The Court is obliged to make findings, as far as possible, as to the relevant circumstances of Mr Kuskoff’s death and the cause of his death. That may or may not require identifying individuals involved. It certainly is not required at this early point in the conduct of the inquest. The process of identification does not require the public disclosure of the actual names of officer A and other STAR Group officers. It is possible for the Coroners Court to make findings of fact identifying the relevant conduct of those officers by reference to initials. The public anonymisation of those officers does not inhibit the Coroners Court in the exercise of its jurisdiction pursuant to section 13 to hold an inquest in order to ascertain the cause or circumstances of Mr Kuskoff’s death. In considering otherwise, the Deputy Coroner fell into jurisdictional error.
The Deputy Coroner’s reliance upon the authority of Priest v West[11] is misplaced. The reasons of the Victorian Court of Appeal in Priest v West are irrelevant to the issues under consideration. Priest v West concerned an inquest in circumstances in which it was known that a girl had been murdered and the subject matter of the inquest was the identity of the person who had killed her. The subject of this inquest is not the identification of the person responsible for killing Mr Kuskoff. That is not in dispute. The obligation on the Coroners Court to find, if possible, the cause and circumstances of Mr Kuskoff’s death can be discharged without publicly naming officer A or any other STAR Group officers who may have been involved.
[11] [2012] VSCA 327.
The Deputy Coroner further misconceived the nature of the function he was exercising. A coronial inquest does not provide for “accountability” otherwise than by making findings as to the causes and circumstances of a death. Of course those findings may lead to other forms of accountability. Plainly, that can occur without the public naming of persons involved in the death of Mr Kuskoff. The orders sought by the Commissioner do not inhibit the Deputy Coroner from holding the inquest into the cause and circumstances of Mr Kuskoff’s death or inhibit him from making findings in relation to the conduct of those involved. It is important to understand in this context that the jurisdiction conferred by section 13 requires the holding of an inquest into a death in custody whether the cause and circumstances of that death are the result of the proper exercise of police or correctional powers or the result of the excessive, capricious or improper exercise of those powers.
Given that there can be no doubt that section 19 conferred power on the Coroners Court to make the orders sought by the Commissioner, the Deputy Coroner was obliged, in exercising his jurisdiction, to consider the Commissioner’s application by weighing whether, in the changed risk environment deposed to by Assistant Commissioner B, and having regard to the evidence of Dr C, it was desirable to make the orders sought, given the principle of open justice. In undertaking that evaluative exercise, the Deputy Coroner had to consider whether it was desirable to make such orders in the interests of national security or to prevent hardship to officer A, other STAR Group officers or their families, given the unchallenged evidence of the risk posed to STAR Group officers in the current security environment and the effect on them of public identification. Those considerations had to be balanced against the public interest in open justice. In undertaking that balancing exercise, it was important for the Deputy Coroner to recognise the limited extent of the interference to that principle sought by the Commissioner’s application.
In this context we note that the Deputy Coroner did make an order suppressing publication of photographs or video identifying any STAR Group officer giving evidence in the inquest. With respect it appears inconsistent in these circumstances not to prevent the public disclosure of the names of those officers, not least because it creates an unintended potential risk to any person who has the same name as a STAR Group officer who gives evidence in the inquest.
Due to the approach that the Deputy Coroner took, he did not give consideration to the basis of the Coroners Court’s power to make the orders sought by the Commissioner that during the course of the conduct of the inquest any STAR Group officers are to be referred to by their initials only and that witness statements and documents tendered in evidence be redacted to show only the initials of STAR Group officers. No express power is conferred upon the Coroners Court to make such orders; however such a power is clearly implied by reason of the jurisdiction and powers conferred by sections 13 and 24 of the Coroners Act and the express power conferred on the Coroners Court pursuant to section 19 of the Coroners Act which imports the power conferred by section 69 of the Evidence Act to make the primary order sought by the Commissioner clearing the Court while STAR Group officers are taking the oath or making their affirmation, in order to conceal their identity.
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.[12] 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.[13] In Attorney-General v Great Eastern Railway Co[14] 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 sections 13 and 24 of the Coroners Act.
[12] DJL v Central Authority [2000] HCA 17 at [25], (2000) 201 CLR 226 at 241; cf Parsons v Martin [1984] FCA 408 at [34], (1984) 5 FCR 235 at 241.
[13] Nguyen v Minister for Health and Ageing [2002] FCA 1241 at [64].
[14] [1880] 5 App Cas 473.
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 sections 13, 19 and 24 of the Coroners Act and section 69 of the Evidence Act and the Coroners Court’s power to control its own processes.
Finally, we observe that any order made by the Coroners Court, as sought by the Commissioner, need not necessarily be indefinite. It is open to the Court to revisit its orders later if circumstances change.
The decision of the Deputy Coroner not to make proposed orders 2 to 4 is vitiated by jurisdictional error.
Procedural fairness?
Having regard to our conclusion that the Deputy Coroner fell into jurisdictional error, it is unnecessary to consider the ground of judicial review complaining of a denial of procedural fairness.
Relief
Although relief by way of judicial review is discretionary,[15] no submission has been put to the Court that the relief sought should be refused if we found the Coroners Court fell into jurisdictional error in refusing the Commissioner’s application. While the Commissioner initially submitted that if the Court found that the grounds seeking judicial review had been made out, this Court should make the orders sought, the Commissioner ultimately accepted that this course was not open on an application for judicial review.
[15] Harradine v District Court of South Australia [2012] SASC 96 at [92] (Blue J).
The appeal
As earlier indicated, in addition to seeking judicial review with respect to the various orders sought in the Commissioner’s name reference application and refused by the Deputy Coroner, the Commissioner also appeals against the Deputy Coroner’s refusal to make a suppression order pursuant to section 69A of the Evidence Act. The suppression order sought, as recorded in the notice of appeal, is in these terms.
1.An order forbidding the publication of the names of all current and former STAR Group officers who are witnesses called in the inquest or who are alluded to in the course of proceedings before the Coroners Court, and of any other material tending to identify any such person.
The Deputy Coroner refused to make an order in these terms but did make a more limited suppression order as follows.
I will not suppress the identities of STAR Group officers whose identities are referred to in the course of these proceedings either by way of their identities being revealed when they give oral evidence or in some other fashion. However, I will suppress from publication, any images of STAR Group officers who have been called to give evidence in this inquest or who are otherwise referred to in the course of this inquest.
The Commissioner appeals against the first sentence in that order and seeks an order that it be set aside and an order in lieu thereof in the more fulsome terms set out above.
The power to make a suppression order
Section 69A of the Evidence Act prescribes the parameters of the power conferred by that section on a court to make a suppression order. For this purpose “court” is defined in section 68 such that it “includes any person acting judicially”. It is common ground that the Coroners Court is a court for the purposes of Part 8 of the Evidence Act including section 69A. Sections 68 and 69A relevantly provide:
68—Interpretation
In this Part—
courtincludes any person acting judicially;
evidence includes any statement made before a court whether or not the statement constitutes evidence for the purposes of the proceedings before the court;
interim suppression order means a suppression order under section 69A(3);
news mediameans those who carry on the business of publishing;
newspaper means a newspaper, journal, magazine or other publication that is published at periodic intervals;
primary court, in relation to an appeal, means the court by which the decision or order subject to appeal was made;
publish means publish by newspaper, radio or television, or on the internet, or by other similar means of communication to the public;
suppression order means an order—
(a)forbidding the publication of specified evidence or of any account or report of specified evidence; or
(b)forbidding the publication of the name of—
(i)a party or witness; or
(ii) a person alluded to in the course of proceedings before the court,
and of any other material tending to identify any such person.
69A—Suppression orders
(1)Where a court is satisfied that a suppression order should be made—
(a) to prevent prejudice to the proper administration of justice; or
(b) to prevent undue hardship—
(i)to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)to a child,
the court may, subject to this section, make such an order.
(2)If a court is considering whether to make a suppression order (other than an interim suppression order), the court—
(a) must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings; and
(b) may only make a suppression order if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in the particular case.
(3)…
(4)A suppression order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.
...
In this case, the Commissioner relies on placitum (ii) of paragraph (b) of subsection 69A(1). The Commissioner contends that a suppression order, in the terms sought, should be made to prevent undue hardship to each of various STAR Group officers in their capacity as a witness or potential witness in the inquest.
The Coroners Act confers a supplementary power on the Coroners Court to make a suppression order. The Commissioner also relies upon this supplementary power. Section 19 of the Coroners Act is in these terms.
19–Inquests to be open
(1)Subject to Part 8 of the Evidence Act 1929 or to any other Act, inquests held by the Coroner's Court must be open to the public.
(2)However, the Court may also exercise the powers conferred on the Court under that Part relating to clearing courts and suppressing publication of evidence if the Court considers it desirable to do so in the interests of national security and, for that purpose, that Part will apply accordingly.
Section 19 restates the open justice principle but makes it subject, inter alia, to Part 8 of the Evidence Act, that is, to all of the powers conferred on a court by Part 8 including the power to make a suppression order under section 69A. In addition, by subsection 19(2), the Coroners Court is also entitled to exercise the Part 8 powers relating to suppressing publication of evidence if considered desirable to do so “in the interests of national security”.
It is important to observe that, in the context of considering whether to make a suppression order, the open justice principle is embodied in any event in section 69A(2)(a) in its application to all courts.
The Commissioner by reference to the affidavit evidence provided by Assistant Commissioner B and Dr C summarised earlier in these reasons relied on both the undue hardship ground and the interests of national security ground as justifying, either independently or in combination, the making of the suppression order sought.
At this stage it is convenient to address the point raised by ALA in its notice of contention. ALA draws attention to the phrase “civil or criminal proceedings” where it occurs in placitum (ii) of paragraph (b) of subsection 69A(1). It submits that an inquest within the meaning of section 21 of the Coroners Act is neither a civil nor a criminal proceeding but rather an investigative proceeding in which the making of any determination of either civil or criminal liability is prohibited.[16] If this is correct, then the “undue hardship” ground for the making of the suppression order as provided for by subsection 69A(1) would not be available with respect to the STAR Group officers. If so, the only ground available for the making of a suppression order would be that provided for in subsection 19(2) of the Coroners Act – the interests of national security ground.
[16] Subsection 25(3) of the Coroners Act 2003 (SA).
We reject the contention of ALA that the undue hardship ground is not available in this case.
By section 4 of the Evidence Act, the word “court” is defined to include:
a tribunal, authority or person invested by law with judicial or quasi-judicial powers, or with authority to make any inquiry or to receive evidence.
Plainly, as ALA accepts, a “court” where that term is employed in the Evidence Act includes the Coroners Court. Further, the term “proceeding” where employed in the Evidence Act is defined in section 4 to include:
any action, trial, inquiry, cause or matter, whether civil or criminal, in which evidence is or may be given and includes an arbitration.
Again, the definition of “proceeding” is wide enough to embrace the proceedings typically conducted in the Coroners Court.
Subsection 69A(1), by the use of the term “court” in its chapeau, extends the operation of that subsection to the Coroners Court. It would serve no purpose and operate arbitrarily to exclude thereafter from the Coroners Court the power conferred by placitum (ii) of paragraph (b) on the basis that the qualifier “civil or criminal” on a strict construction is not apposite to Coroners Court proceedings. The phrase “civil or criminal” as qualifying the noun “proceedings” in placitum (ii) (just as that phrase is employed in the section 4 definition of “proceedings”) is a phrase of inclusion not exclusion. The phrase is not intended to limit the reach of placitum (ii) so that the search becomes one for proceedings that can be characterised as something other than “civil” or “criminal”. Rather the use of this qualifying phrase is intended to ensure that all forms of “proceedings” as broadly defined are to fall within placitum (ii). The word “civil” is not used in its strict or narrow sense but as encompassing all proceedings that are not “criminal”. Moreover, there are other proceedings (such as disciplinary proceedings brought under the Legal Practitioners Act 1981 (SA)) which may be characterised as something other than civil proceedings in the narrow sense or criminal proceedings in the narrow sense. ALA accepts that such proceedings are “civil or criminal proceedings” within the meaning the definition of “proceedings” in section 4 and section 69A(1)(b)(ii) but contends that subsection 25(3) of the Coroners Act manifests an intention that proceedings under the Coroners Act are not “civil or criminal proceedings” for this purpose. We reject that contention.
The fact that subsection 25(3) of the Coroners Act operates to preclude the Coroner from making a determination of civil or criminal liability does not mean that the conduct of an inquest by the Coroner is not a civil proceeding for the purpose of section 69A(1)(b)(ii).
There were two bases for making a suppression order properly before the Deputy Coroner – the need (if established) to prevent undue hardship to witnesses – in this case, the STAR Group officers – and/or if the making of the order sought were shown to be in the interests of national security. Given the terms of section 19 of the Coroners Act, any reliance on the interests of national security ground would need to conform to the requirements of section 69A of the Evidence Act.
The ambit and requirements of subsections 69A(1) and (2) have been considered by Judges of this Court on a number of occasions albeit usually in the context of ascertaining the requirements, on the facts, of a fair criminal trial.[17] For present purposes, it is sufficient to note that section 69A of the Evidence Act together with subsection 19(2) of the Coroners Act prescribe the following requirements (of present relevance) before a court can make a suppression order.
(i)The court must be satisfied that a suppression order (in the terms to be made) should be made “to prevent undue hardship” to a witness or potential witness (in this case, STAR Group officers) or the court considers it “desirable” to make the order “in the interests of national security”.
(ii)The Court must recognise, as a primary objective in the administration of justice, the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings.
(iii)The Court must be satisfied that special circumstances exist giving rise to a sufficiently serious threat of undue hardship or prejudice to the interests of national security to justify the making of the order in the particular case.
[17] See, for example, An Accused v Adelaide Magistrates Court [2014] SASC 18 at [8]-[11], (2014) 123 SASR 448 at 451 (Nicholson J); B, RD v Channel Seven Adelaide Pty Ltd & Ors; B, RD v Advertiser Newspapers Pty Ltd & Anor [2008] SASC 282; (2008) 103 SASR 478 (Doyle CJ and with whom Layton J agreed) on appeal from Channel Seven Adelaide Pty Ltd & Ors v An Accused & Anor; Advertiser Newspapers Pty Ltd v An Accused & Anor [2008] SASC 246; (2008) 103 SASR 459 (Bleby J).
The powers of this Court when hearing an appeal with respect to a suppression order conferred by section 69AC are set out in subsection 69B(3) as follows.
(3)Upon an appeal under this Division, the appellate court—
(a) may confirm, vary or revoke the order or decision subject to the appeal; and
(b) may make any order or decision under this Division that could have been made in the first instance; and
(c) may make orders for costs and orders dealing with any other incidental or ancillary matters.
The weight of authority in this State is that such an appeal is by way of rehearing and the Court can interfere only if satisfied that the Court below has erred. In particular, when the order appealed from is the product of the exercise of a discretion, House v The King[18] considerations will apply such that the issue before the appeal court is not whether it would have made a different order. Rather, the question to be asked is whether a process or reasoning error (of fact or law) by the court below can be identified or whether an outcome error (that is, a conclusion that the ultimate decision was so unreasonable as to fall outside the available discretion) can be identified.[19] We observe that in Channel Seven Adelaide Pty Ltd & Ors v An Accused & Anor; Advertiser Newspapers Pty Ltd v An Accused & Anor[20] Bleby J, without discussion or providing reasons, expressed a view that the appeal from a decision under section 69B that was before his Honour was tantamount to a hearing de novo and had been argued as such.[21] In this matter, and without finally deciding the question, the matter has been argued with respect to House v The King principles and we are content to determine the appeal on that basis.
[18] (1936) 55 CLR 499.
[19] See Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351 at [31], (2004) 90 SASR 160 at 168 (Gray J with whom Nyland J agreed) and Packer v Police [2007] SASC 98 at [5] (Doyle CJ).
[20] [2008] SASC 246 at [11], (2008) 103 SASR 459 at 463.
[21] Similarly, Nicholson J treated the appeal as being one de novo in An Accused v Adelaide Magistrates Court [2014] SASC 18 with the consent of the parties and on the basis that it had been argued in that way.
The grounds of appeal
The Deputy Coroner published separate reasons for his decision not to make the suppression order sought. The reasons, at least in part, traversed considerations similar to those set out in the name reference decision reasons. Given the manner by which we propose to dispose of the appeal, we do not find it necessary to provide a summary of this second set of reasons.
The Commissioner relies on 14 grounds of appeal, some with a significant number of subgrounds. Numerous process errors in the House v The King sense, attacking the reasoning process adopted by the Deputy Coroner, are asserted. A number of the grounds particularise various ways by which, so it is asserted, the Deputy Coroner misapprehended and misapplied the nature and extent of the power conferred on him.
We are satisfied that a number of the process errors relied on by the Commissioner are made out and that the Deputy Coroner’s discretion miscarried such that this Court should exercise the discretion afresh. By way of example only: there was an inappropriate conflation by the Deputy Coroner of the need to ascertain which person was responsible for particular actions with a need to make known that person’s name (ground 3.2); there was an inappropriate conflation of or characterisation of the act of non-identification of persons with or as giving rise to a virtual immunity from public scrutiny and accountability (ground 3.4); and there was an inappropriate conflation of the public’s interest in open justice with the marginal additional public interest in revealing publicly the names of relevant STAR Group officers (ground 3.5). Such considerations placed unwarranted fetters on the Deputy Coroner’s exercise of the discretion as to whether to make the suppression order sought.
It is not necessary and in the interests of expedition we will not take the time to deal with each of the Commissioner’s grounds of appeal or to provide further reasons for the conclusions already arrived at.
In our view, an outcome error has occurred. This is a clear case for a suppression order in the terms sought. Whether caused by process errors in the Deputy Coroner’s reasoning or irrespective of the same, the discretion miscarried in the sense that the decision not to grant the order as sought was unreasonable and fell outside the responses to the application properly available to the Deputy Coroner on the available evidence.
We are satisfied on the affidavit evidence of Assistant Commissioner B and Dr C, earlier summarised, that to name the officers concerned would, at the least, expose them to fears, concerns and anxieties that amount to hardship and, in the circumstances of this matter, hardship that is to be characterised as undue. In addition and in any event, the evidence discloses a real risk that the naming of officers will compromise the future capacity and even willingness of these and other officers to conduct their operations fearlessly and effectively in the national interest as has already been explained in the judicial review section of these reasons.
These concerns must be weighed against the public interest in open justice. In our view, there is no real infringement on this public interest. It is common ground that only the identities of certain witnesses are to be suppressed. Their evidence is to be received in full and is to be fully available to the public. The Deputy Coroner’s capacity to examine what occurred, how it occurred, in what circumstances it occurred, who was responsible for what occurred, who performed what actions and with what intent, and so on, will not be compromised.
Any additional interest by members of the public in knowing the names or identities of particular STAR Group officers is, at best, of marginal significance. Such knowledge may be interesting to a member or members of the public but it is not, per force, to be equated with the public interest.
While in no way determinative, it is of significance that neither the representatives of the media present before the Deputy Coroner nor Ms Liemareff, the deceased’s sister representing the family, raised any objection to the suppression order sought. This suggests that they have a keen understanding of what constitutes the public interest in open justice in this case. The media representatives at all times have indicated that their only concern is to ensure unfettered access to all of the evidence. They recognise that the suite of orders sought by the Commissioner, including the proposed suppression order, would not compromise that position.
Given the minimal, if any, capacity to compromise the open justice principle, we are satisfied that special circumstances exist in this case such that there is a sufficiently serious threat of undue hardship and to the interests of national security to justify the making of the very limited form of suppression order sought by the Commissioner.
During argument, the Court’s attention was drawn to a small number of interstate cases in which a different outcome was arrived at on differing evidentiary bases. Ultimately, each case will turn on its own facts. To the extent that our decision might be seen as broadening the circumstances in which a suppression order of this type might be made, as compared with earlier authorities, such is an inevitable consequence of the changing times. National security interests are now receiving more attention by governments and the public generally. There is increasing recognition that such interests have been compromised and will continue to be compromised in the future. In circumstances where there is no practical threat to the open justice principle, it is appropriate now more than before that steps to avoid risking the national interest be taken where appropriate. It must be remembered that the suppression order sought in this case only concerns the proceedings in the Coroners Court and would remain in place only until or unless revoked or varied.[22] If, as matters develop, a need to identify and publish the name of a STAR Group officer arises for the proper purposes of the coronial inquest or some other proceedings or on public interest grounds more generally, an application to revoke or vary can be made.
[22] See subsection 69A(6).
In arriving at this conclusion, we have not overlooked the note of caution expressed by the Western Australian Court of Appeal in Hopeley v State of Western Australia:[23]
It is important that police officers and others working within the criminal justice system are not perceived as receiving preferential treatment in the application of the principle of open justice or exempt from the rationales that underpin it.
However, this important consideration must be tempered by the overarching observation of Doyle CJ (with whom Layton J agreed) in B, RD v Channel Seven Adelaide Pty Ltd & Ors; B, RD v Advertiser Newspapers Pty Ltd & Anor.[24]
Statutory provisions for the making of suppression orders qualify this common law principle. Courts are often criticised for making suppression orders. If the order is wrongly made, the criticism is justified. But it needs to be understood that when courts make suppression orders, they do so because Parliament has, by statute, conferred the power to do so. When the statutory criteria for the making of an order exist, and subject to any discretionary or like considerations, the court should make the order. To decline to do so would be erroneous, because Parliament has enacted that when appropriate circumstances exist, the order is to be made.
[23] [2014] WASCA 30 at [27].
[24] [2008] SASC 282; (2008) 103 SASR 478 at [17].
Orders to be made on appeal
The order by the Deputy Coroner on the suppression order application should be set aside and a suppression order made in the terms sought by the Commissioner.
The Commissioner contends that, if the appeal is allowed to this extent, this Court also has power on appeal and independently of the judicial review proceedings to make the various orders sought in the name reference application. If so and if the appeal were to be allowed, it would not be necessary to resolve the judicial review application. The Court would not be restricted to the making of an order in the nature of certiorari directed to the Coroners Court setting aside the name reference decision and in the nature of mandamus requiring that Court to decide the Commissioner’s name reference application according to law.
The additional orders sought, as a consequence of the appeal succeeding with respect to the suppression order and as set out in the notice of appeal, are in the following terms.
2.When STAR Group officers are called as witnesses to give evidence in the inquest, the Court is to be closed during the swearing-in of those witnesses.
3.During the inquest, and in any transcript that is available to the public, STAR Group officers are to be referred to by their initials only.
4.Witness statements and documents which make reference to the names of STAR Group officers are to be received in a closed court only.
5.The versions of any witness statements and documents that are available to the public are to be redacted such that the names of STAR Group officers are replaced by their initials only.
The power to make orders in terms of proposed orders 2 and 4 is to be found in section 69 of the Evidence Act. The power to make an order in terms of proposed order 3 is implied from the jurisdiction and power conferred on the Coroners Court by the Coroners Act (as well as the power conferred by section 69 of the Evidence Act). Section 37 of the Coroners Act empowers an order in terms of proposed order 5. The Commissioner does not suggest that any of these orders is authorised by section 69A of the Evidence Act.
In support of the contention that, if the appeal were to succeed with respect to the suppression order, this Court could also make orders in terms of orders 2 to 5 inclusive, the Commissioner relies on the terms of section 69B of the Evidence Act which provides as follows.
69B—Appeals
(1)An appeal under this Division lies to—
(a) the court to which appeals lie against final judgments or orders of the primary court; and
(b) where there is no such court—the Supreme Court constituted of a single judge,
and where the appeal lies in accordance with the above principles to some court other than the Full Court, a further appeal lies to the Full Court from a judgment or order of the primary appellate court.
(2)An appeal under this Division shall be heard and determined as expeditiously as possible.
(3)Upon an appeal under this Division, the appellate court—
(a) may confirm, vary or revoke the order or decision subject to the appeal; and
(b) may make any order or decision under this Division that could have been made in the first instance; and
(c) may make orders for costs and orders dealing with any other incidental or ancillary matters.
(4)Except as provided in this Division, no appeal lies against a decision or order of a court made under this Division.
Section 69B governs the manner by which an appeal “under this Division” is to be conducted. The Commissioner relies on paragraph (b) of subsection (3).
Section 69 falls within the Division of the Evidence Act in question (Division 2 of Part 8) as does section 69A. As such, the Commissioner contends that a literal reading of paragraph (b) is wide enough to embrace orders to be made the power for which can only be found in section 69. However, even if the Commissioner’s argument were to be accepted, an order in the form of orders 3 and 5 could not be made on appeal pursuant to the power conferred by paragraph (b) because the power to make such orders derives from the Coroners Act.
In any event, such an expansive reading of paragraph (b) may not be warranted. According to subsection 69B(1), section 69B is directed to appeals under Division 2 of Part 8. Further, except as provided for in Division 2, no appeal lies against a decision or order of a court made under that Division.[25] The only appeals available under Division 2 are those provided for by subsection 69AC(1) and subsection 69(3). The former is in these terms.
(1)An appeal lies against—
(a) a suppression order or a decision by a court not to make a suppression order; or
(b) the variation or revocation of a suppression order or a decision by a court not to vary or revoke a suppression order; or
(c) a decision by a court on the review of a suppression order.
[25] See subsection 69B(4).
A court’s power to make any orders of the type identified in subsection 69AC(1) and with respect to which an appeal lies is to be found in section 69A (the making, varying and revoking of suppression orders) and section 69AB (the reviewing of suppression orders). Subsection 69(3) provides for a very limited right of appeal against a refusal by a court which has made an order closing the court to make available a transcript of evidence or a record of proceedings taken during the operation of the closed court order.
Importantly, orders such as proposed orders 2 and 4 above do not fall within section 69AC or subsection 69(3) and, in accordance with subsection 69B(4), no appeal lies under Division 2 of Part 8 against such orders or a refusal to make such orders.
When Division 2 of Part 8 of the Evidence Act is read as a whole, the legislature has distinguished those types of orders made under the Division which are amenable to appeal from those types of orders made under the Division which are not and as to which, in appropriate circumstances, the only remedy available will be that of judicial review. It would be incongruous for the legislature to limit the right of appeal in this way but then to allow the appeal court, provided a complying appeal has been made, to go on and vary, revoke or replace other orders made that are not and could not have been subject to appeal.
Paragraph (b) of subsection 69B(3) is to be read in conjunction with and in the context of the power conferred by paragraph (a). The premise is that an appeal court has been asked to review an order of the type described in subsection 69AC(1) or subsection 69(3). It is this order or decision that is subject to the appeal and that the appeal court may confirm, vary or revoke. It is in this context that the court is also empowered under paragraph (b) to make any order or decision under Division 2 that could have been made in the first instance. These include orders made pursuant to sections 69A, 69AB and 69(2) but not orders made under section 69(1) or (1a).
As earlier indicated, there is no power under Division 2 of Part 8 to make an order in the nature of proposed orders 3 and 5. As such, subsection 69B(3)(b) on any consideration will not empower an appeal court to make such an order. Even if the appeal were to succeed, the matter would need to be remitted to the Coroners Court for the Commissioner’s name reference application to be reconsidered according to law at least with respect to proposed orders 3 and 5. For the reasons earlier given and whether or not the proper reach of subsection 69B(3) is as contended by the Commissioner, the whole of the application for orders 2 to 5 should be remitted.
Our conclusion not to make proposed orders 2 to 5 on appeal should not be misunderstood. We do not decline to make those orders because we consider that on the merits they should not be made; indeed, to the contrary. The only reason we decline to make those orders is either because this Court lacks power to make such orders (at least in the case of proposed orders 3 and 5 and arguably also in the case of proposed orders 2 and 4) and in the exercise of the discretion this Court should not make the proposed orders itself but should remit the matter to the Deputy Coroner. In this respect, for the reasons explained at [46] to [56] and [96] to [102] above, there is a critical difference between an appeal court’s power to make such orders on an appeal against a refusal to make a suppression order and the power of the Coroners Court to make such orders at first instance (which we have found above exists). It is not the function of this Court on a judicial review to make the orders that should have been made by the Coroners Court but rather to remit the matter for it to deal with the matter according to law.
Conclusion and Orders
We quash the decision of the Deputy Coroner made on 5 March 2018 and remit the Commissioner’s name reference application to the Deputy Coroner seeking orders in the form of the proposed orders to be dealt with in accordance with law and these reasons.
We allow the appeal with respect to proposed order 1,[26] set aside the suppression order made by the Deputy Coroner and in lieu thereof make an order forbidding the publication of the names of all current and former STAR Group officers who are witnesses called in the inquest or who are alluded to in the course of proceedings before the Coroners Court and of any other material (including images) tending to identify any such person.
[26] As set out in paragraph [9].
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