Correll v Attorney General of NSW - [2007] NSWSC 1385

No judgment structure available for this case.

Reported Decision:
180 A Crim R 212

New South Wales

Supreme Court

CITATION: Correll v Attorney General of NSW [2007] NSWSC 1385
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23/11/07

JUDGMENT DATE :
17 December 2007

JUDGMENT OF: Bell J at 1

DECISION: 1. Declare that the second defendant erred in ; (a) ruling that; (i) s 33 of the Coroners Act did not entitle her to consider as an objection there under the objection to questioning made by the plaintiff on 11 December 2006 recorded at T 11.12 and following; (ii) That she did not, for the purposes of s 33 of the Coroners Act, need to consider whether any question of the plaintiff concerning the manner and cause of the death of Rachelle Childs might criminate or tend to criminate the plaintiff of an offence,; (b) not ruling that the objection in (a)(i) was properly made for the purposes of s 33 of the Coroners Act; 2. Declare that the second defendant erred in; (a) ruling that; (i) s 33 of the Coroners Act did not entitle her to consider as an objection there under the objection to questioning made by the plaintiff on 12 December 2006 recorded at T 28.37 and following,; (ii) that she did not, for the purposes of s 33 of the Coroners Act, need to consider whether any question asked of the plaintiff concerning his movements and activity in the week from Sunday 3 June 2001 to 10 June 2001, insofar as it was relevant to the manner and cause of the death of Rachelle Childs, might criminate or tend to criminate the plaintiff of an offence,; (b) not ruling that the objection in (a)(i) was properly made for the purposes of s 33 of the Coroners Act; 3. Declare that the second defendant erred in ruling that each of the questions asked of the plaintiff on 15 and 21 December 2006; (a) to which objection was taken for the purposes of s 33 of the Coroners Act, and; (b) which the plaintiff was required by the second defendant to answer, was not a question which might criminate or tend to criminate the plaintiff of an offence; 4. Declare that the plaintiff was entitled to decline to answer each of the questions to which objection referred to in prayers 1, 2 and 3 was taken; 5. Order that the plaintiff not be examined in respect of the “significant development” referred to by counsel assisting the Coroner in the transcript of proceedings on; 20 November 2006, at T 3.47 and/or; 11 December 2006 at T 6.21,; unless and until that “significant development” has been disclosed to him on reasonable notice

CATCHWORDS: INQUEST - privilege against self-incrimination

LEGISLATION CITED: Coroners Act 1980

CASES CITED: Decker v State Coroner (1999) 46 NSWLR 415
Maksimovich v Walsh (1985) 4 NSWLR 318
Musumeci v Attorney General of New South Wales [2003] NSWCA 77; 57 NSWLR 193
R v the Coroner; ex parte Alexander [1982] VR 731
R v Rutledge; Ex parte Laidlaw [1923] St R Qd 284
Sorby v The Commonwealth of Australia (1983) 152 CLR 281

PARTIES: Kevin Correll (Plaintiff)
Attorney General of NSW (1st Defendant)
Deputy State Coroner (2nd Defendant)

FILE NUMBER(S): SC 12541/07

COUNSEL: T Lynch (Plaintiff)
P Singleton (1st and 2nd Defendants)

SOLICITORS: SE O'Conner (Plaintiff)
Crown Solicitors Office (1st and 2nd Defendants)

LOWER COURT JURISDICTION: Coroners Court of NSW

LOWER COURT JUDICIAL OFFICER : Magistrate Culver

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Monday 17 December 2007

12541/07 Kevin Correll v Attorney General of New South Wales
JUDGMENT

1 BELL J: An inquest is proceeding before the second defendant, the Deputy State Coroner (the Coroner), into the death of Rachelle Childs. In his opening address on 20 November 2006 counsel assisting the Coroner informed her Honour of his expectation that the evidence would support the conclusion that Ms Childs was murdered. The plaintiff is a witness in the proceedings. He was called to give evidence on 11 December 2006. His evidence was taken on that day and on succeeding days and is not complete. In these proceedings the plaintiff challenges a number of rulings made by the Coroner with respect to his claim of privilege against self-incrimination and arising out of the non-disclosure of material to him. He claims declaratory and other relief.

2 The Coroner has filed a submitting appearance. I will refer to the first defendant as “the defendant” in these reasons.

3 It is the plaintiff’s case that the Coroner’s rulings on his claims of privilege demonstrate that her Honour misconceived the scope of the privilege against self incrimination. He contends that she failed to rule on his initial objection to giving evidence by, wrongly, holding that she could not entertain a global objection. Mr Lynch, who appeared on the plaintiff’s behalf, submitted that the inquest had become a proceeding that was being conducted improperly for forensic tactical advantage: Musumeci v Attorney General of New South Wales [2003] NSWCA 77; 57 NSWLR 193 at 199.

4 It is necessary to refer to the course of the proceedings before the Coroner at some length before turning to the claims for relief.

5 In the course of his opening counsel assisting informed the Coroner that Rachelle Childs was last seen alive on the evening of Thursday 7 June 2001 and that her body had been found in bush, near Seven Mile Beach, south of Gerroa shortly after 2.00am the following day. He informed her Honour:

but it should be noted that as each person of interest is examined and discounted the corollary is that the case against the killer mounts. That process, I anticipate, will occur in this inquest

…

I anticipate given the large number of witnesses that have to be called, that family members of the killer will have to give evidence which is never a pleasant experience. I anticipate that they will learn things about their family member that they did not previously know, not just about this matter but about the personal background

6 The Coroner was also informed by counsel assisting of the reason for the earlier adjournment of the inquest: there had been a “potentially significant development” and valuable evidence had been obtained and analysed, which had led to insights into the case that had not previously been reached. (T 20/11/06 3.47)

7 Whatever this potentially significant development may be, it has not been disclosed to the plaintiff.

8 The inquest proceeded over a number of days prior to 11 December 2006. On that day the plaintiff was called to give evidence. He was the eighth of the persons of interest to be called.

9 Before the plaintiff was sworn Mr Johnston, of counsel, was given leave to appear on his behalf. Mr Johnston made an application that the plaintiff not be called to give evidence “at this stage”. He submitted that the plaintiff had given an account of his knowledge of Ms Childs in three interviews with the police and that by the third interview it was apparent that he was being questioned as a suspect. In Mr Johnston’s submission it appeared that the purpose of calling the plaintiff to give evidence at the inquest was to examine him in order to obtain answers that may incriminate him.

10 Mr Johnston raised as a discrete concern that the “significant development” had not been disclosed to the plaintiff.

11 Counsel assisting submitted that the plaintiff should be required to give evidence. In the course of his submissions he said this:

Mr Correll’s in the same boat as all of those. Whether or not I get to the point at the end of his evidence of submitting that he also doesn’t need representation, well it’s too early to say, but at the beginning of his evidence, he’s in the same boat as many others and at the end of his evidence, he may be in the category of people who are, to be rather colloquial, cleared on a provisional basis or he may in the category of people who still need further scrutiny. (T 11/12/06 5.35-43)

12 The Coroner rejected the plaintiff’s application. The plaintiff was sworn and (after some housekeeping questions which related to the whereabouts of another witness) the examination proceeded:

SINGLETON: Q. Thank you Mr Correll. Did you know Rachelle Childs?
A. Yes I did.

SINGLETON: I think my friend wants to assist.

JOHNSTON: Your Honour, again, it’s on my advice. I’d like Mr Correll to make a formal objection to giving evidence. He can do that at this point, now that a question’s been asked of him. I expect your Honour will immediately overrule that objection, but …

HER HONOUR: I don’t see that his answer to that question could possibly incriminate him.

JOHNSTON: No, I’m – the global position that I’m attempting to protect at this stage your Honour and it may well – again, it’s a matter of unresolved authorities that – I’m quite prepared to be wrong at this stage, but on my advice to Mr Correll, I think his position is best protected by, on this one occasion, making a global objection which your Honour will overrule.

HER HONOUR: Thank you Mr Johnston. I have considered the aspects of natural justice. I have considered your application in light of the submissions previously made as well and it’s my view, having regard to s 33 and s 33AA, that my role is to determine whether or not the answer that Mr Correll to such a question might tend to incriminate him and I cannot see that an answer he would give to that question, if responsive, might incriminate him, so I will ask that if you do wish to raise the objection you do it on a question by question basis.

JOHNSTON: Your Honour pleases.

SINGLETON: Q. How did you know Rachelle Childs?
A. Based on advice from Mr Johnston …

JOHNSTON: Q. No, sorry. You made your objection, sorry Mr Correll. Just continue, sorry. Thank you.

SINGLETON: Q. How did you know Rachelle Childs?
A. I worked with Rachelle. (T 11/12/06 11.7-50)

13 The examination of the plaintiff proceeded and he answered the questions asked of him without taking further objection. His examination continued on 12 December. He again answered questions without taking further objection. Counsel assisting foreshadowed that he proposed to move to the topic of the plaintiff’s movements in the days leading up to the death of Rachelle Childs. The examination continued:

Q. How could it incriminate you?

OBJECTION

HER HONOUR: Do you wish to make a submission?

JOHNSTON: Yes I do, your Honour.

HER HONOUR: What’s your submission?

JOHNSTON: The submission is that we have entered into a territory now, once Mr Singleton’s counsel assisting started cross-examining Mr Correll on the statement of KP9. At that time he started putting propositions which if accepted by Mr Correll may tend to implicate him in an indictable offence, specifically the death of Rachelle Childs.

HER HONOUR: But sorry, just if I can deal with that, because I thought your client’s objection was to a different line of questioning.

JOHNSTON: It is.

HER HONOUR: So I will deal with that aspect now. I invited you, and this is no criticism of you whatsoever, Mr Johnston, but I invited you on behalf of your client to raise an objection to questions specifically as they went along, I didn’t anticipate there was any objection to those questions. Those questions have been asked and answered. Are you now seeking to re-visit those answers?

JOHNSTON: Your Honour, what I’m doing at this point in time, my client is the person that raises the objection as your Honour is well aware. My client didn’t raise the objection at another point in time, though he did raise an overall objection at the commencement of these proceedings.

HER HONOUR: No, that’s correct. But as I said I did invite you on behalf of your client to raise an objection to questions specifically.

JOHNSTON: I understand that, your Honour, the legislation requires …

HER HONOUR: So can I just get back to whether or not are we re-visiting the answers to those questions concerning as you put it, the aspects raised through KP9?

JOHNSTON: Not those specific questions. But the point that has been raised by my client at this point of time is the area that counsel assisting is attempting to enter into now is material that he has previously answered in some detail. And he objects to providing any further answers in relation to those particular areas on the basis that there is no purpose to ask any further questions other than attempt to break his account down and an attempt to incriminate him. The answers, in whatever form, may form a sequence of circumstances that can be used against him in a prosecution if it were to arise. Now it’s not simply a matter of whether a particular answer does incriminate him. The legislation exists for a person who is in a position where the answers may tend to incriminate him. And of this particular area the answers have already been given. The purpose of asking further questions is not to inform the inquiry or the inquest, the purpose of asking further questions at this point is an attempt to break down his account and to cross-examine him as a suspect against the account that he has previously given and to challenge that account against some other accounts that make up the overall brief in relation to this matter. In my submission to your Honour it is a matter where s 33AA protection should be provided to Mr Correll and you should grant him a certificate and then if from that point onwards he is questioned the answers can assist the inquiry, if that’s the course that your Honour chooses to take, but he is given a protection from any answers that may tend to incriminate him, that’s the purpose of the section.

HER HONOUR: Thank you Mr Johnston. Mr Singleton, do you wish to respond to that?

SINGLETON: The question I asked was whether Mr Correll would find it easier to deal with this issue starting at Sunday and moving to the end of the week or starting at the end of the week and moving backwards. I fail to see how either answer could incriminate him or tend to incriminate him, and that’s the issue that allegedly arises. Would any answer – well the true issue is, would the answer he intends to give incriminate him. Now I find it impossible to see how it would incriminate him if he said I prefer to go forwards in time or backwards in time or if he said I have no preference either way. Now that’s the true issue. In my submission there is nothing that has been said to you that would persuade you that that question should not be allowed, but as my friend has in a sense gone to the next questions. The requirement for the objection to be valid is that the answer would tend to incriminate the witness, not that the line of questioning is on a sensitive area, not that the line of questioning might have certain intentions, it is that the answer would tend to incriminate the witness. So far nothing has been suggested as to why these answers would incriminate the witness.

…

Now my friend in a sense needs to choose and tell you that it will be incriminating for one reason or another, not simply to say in a very vague fashion that there may be a tendency depending on what the answer is going to be. Now if my friend, with respect, needs to confer with the witness to find out what the answers would be and he can then put a submission that there will be a tendency to incriminate, that is one thing, and I would certainly not oppose an adjournment for that purpose. But absent some specificity as to why there might be some incrimination in my respectful submission the better course would be to hear the answers and if there is an incriminating answer of course the Act allows for that to be dealt with retrospectively and that would be the better way to proceed, at least at this stage when we haven’t really got anywhere. If we start to get repeated incriminating statements we might have to re-visit the more general approach that my friend seeks, but in my submission it is too premature.

HER HONOUR: I agree with that section, Mr Singleton, section 33AA of the Coroners Act 1980 and subsection (1) specifically refers to the giving of particular evidence. I don’t see that section 33AA is invoked in any meaningful way at this stage for the reasons you have elaborated upon, Mr Singleton. I should just indicate as a partial response to Mr Johnston’s submissions that Mr Correll is one of many witnesses who has been called to give evidence at this inquest. Most of those other witnesses have also provided very detailed accounts to the police and just to say that the fact that they have given answers to the police in a detailed manner previously would somehow expose them to incrimination in answering questions touching upon the same areas in this inquest to my mind holds no weight. There must be, as Mr Singleton suggests, something more specific than that. So Mr Johnston, the ball is back in your court so to speak. I will allow the questions to be asked with each particular question. If you are instructed on behalf of your client to raise the objection so be it and I will consider it on a question by question basis. But at this stage I do not see that 33AA is meaningfully invoked.

JOHNSTON: I understand what your Honour is saying and this in part comes to a difference, an opinion that I have about coronial proceedings to which your Honour holds and I’m not about to quibble with your Honour’s …

HER HONOUR: I don’t think I’ve expressed an opinion but anyway.

JOHNSTON: Well you have provided your ruling and that’s your ruling. But it comes down to this, your Honour. My client is a person who has been described as a person of interest in these proceedings. It has gone further than that there have been other people who have been described as a person of interest who have been announced as being excluded from the investigation and that my client remains as the only person who has not been excluded from the investigation as a person of interest. Now I don’t know if that’s correct but your Honour is nodding your head, that is certainly the media reports that have reported what has happened. So at this position in time he remains a person of interest that has not been excluded, in other words he is at a position where he may … is in effect a suspect.

HER HONOUR: As were each of the other witnesses to whom you have referred and your client may well be excluded at the day, I don’t know yet.

JOHNSTON: I understand that, but absent these proceedings, your Honour, my client as a suspect has a right to silence and these proceedings have certain powers. Firstly to require him to attend. Secondly to require him to take an oath and if he refuses to take an oath and if he refuses to take an oath it’s an offence. So in effect … (fault in recording equipment) … against his right to silence. By taking objection yesterday at the outset of these proceedings my client on … (fault in recording equipment tape A ends) …

(Tape B begins) …

HER Honour: Thank you, please continue Mr Johnston.

JOHNSTON: Thank you. I will back up just slightly just in case we missed it. By indicating an objection yesterday to giving evidence on my advice was effectively doing no more than indicating that he as a general principle objects to the fact that his right to silence has had an impact – these proceedings can compel him to give evidence against his right to silence. The question comes as to whether there is adequate protections in relation to these proceedings to his right to silence or whether Parliament’s intention to override that right to silence is absolute in these proceedings. Now, it comes down in Part II, the interpretation of 33AA and your Honour has provided a ruling in relation to that. At this stage if we’re dealing with it on a question by question basis, I accept that there is no particular answer to the question, what do you want to prefer that we start on the Sunday or the Thursday, that could be of itself incriminating, I accept that. But we are moving into a topic area, specifically the area of his movements on the night of 7 June 2001. But the purpose of asking questions in relation to those issues is to obtain an account from him which, if there were to be later proceedings against my client, and I don’t know whether there will or there won’t, but if there were to be later proceedings against him, anything he says in this courtroom can be used in evidence against him if your Honour does not grant him a general certificate. Now, when we go to – if we were – just take for a moment, if I was to – if these proceedings with the New South Wales Crime Commission, my client can take a general objection to giving evidence, needs to provide no basis for it and he gets a certificate for everything he says and it cannot be used in evidence against him.

HER HONOUR: We’re a very different body here to the Crime Commission …

JOHNSTON: I understand that …

HER HONOUR: … with a very different focus under the Coroners Act in that I have defined manner, cause, date of death if I can.

JOHNSTON: I understand those matters your Honour but – and that’s where we have different positions. Your Honour has a certain role to perform, I also have a certain role to perform on behalf of my client. My client’s interests are not limited to what is happening within this courtroom, within this coronial inquest.

HER HONOUR: That’s well understood.

JOHNSTON: That’s why we are taking these steps to protect his position. If, by some chance, there was to be later proceedings which are beyond the control of Mr Correll they are – and they may well – ultimately whether or not your Honour makes a determination under s 19 may well be under the decision of the Director at a later point in time but, at this stage, we have competing positions.

HER HONOUR: I can assure I’m not competing in any sense. I’m just attempting to apply the Act and I don’t see that I’m applying it with any intention of being adverse to anyone’s interests. This is an inquisitorial proceeding and I’m attempting to find the truth. (T 12/12/06 28.27-43.1)

14 The examination of the plaintiff on 12 December became increasingly accusatorial. He was challenged to offer an explanation of how his mobile telephone phone had been used to make a call via the Picton cell tower at 6.08 on 7 June when he claimed he had been in Campbelltown. It was put to him that he had been defrauding his employer, Camden Holden, and that he perceived there to be at least a real risk that Rachelle Childs, who was also employed at Camden Holden, would learn of the fraud.

15 On the morning of 15 December Mr Johnston made an application that the Coroner grant a retrospective certificate under s 33AA of the Coroners Act 1980 (the Act) in relation to all of the answers given by the plaintiff in the course of his evidence on 11 and 12 December. Counsel assisting acknowledged that some of the plaintiff’s evidence may have incriminated him but submitted that the power to grant the certificate may not have been enlivened since the evidence had been given without objection. There was an issue concerning the extent of the objection that had been taken and the plaintiff’s application was stood over pending receipt of the transcript. It remains undetermined.

16 The examination of the plaintiff continued on 15 December. He was directed to answer a number of questions over objection on that day.

17 Towards the conclusion of the plaintiff’s evidence on 15 December counsel assisting asked the following:

Q. Mr Correll, why don’t you tell us what really happened to Rachelle Childs?

OBJECTION. Question withdrawn.

SINGLETON: Mr Correll, what happened to Rachelle Childs that brought about the end of her life?

A. On the advice of Mr Johnston I refuse to answer that question on the grounds that it may incriminate me.

Q. You killed Rachelle Childs, didn’t you? (T 15/12/06 8-15)

18 The examination of the plaintiff continued on 21 December when he was again directed to answer a number of questions over objection.

19 Each ruling made on 15 and 21 December directing the plaintiff to answer a question over his objection that his answer might tend to incriminate him is the subject of challenge.

20 By amended summons the plaintiff claims the following relief:

1. A declaration that the second defendant erred in:

(a) Ruling that

(i) s 33 of the Coroners Act (CA) did not entitle her to consider as an objection thereunder the objection to questioning made by the plaintiff on 11 December 2006,

(ii) that she did not, for the purposes of s 33CA, need to consider whether any question of the plaintiff concerning the manner and cause of the death of Rachelle Childs might criminate or tend to criminate the plaintiff of an offence,

(b) not ruling that objection in (a)(i) was properly made for the purposes of s 33CA.

(The relief claimed prayer 1 relates to the ruling made on 11 December 2006, which is recorded at T 11.)

2. A declaration that the second defendant erred in:

(a) Ruling that

(i) s 33 of the Coroners Act (CA) did not entitle her to consider as an objection there under the objection to questioning made by the plaintiff on 12 December 2006,

(ii) that she did not, for the purposes of s 33CA, need to consider whether any question of the plaintiff concentring his movements and activity in the week from Sunday 3 June 2001 to 10 June 2001, insofar as it was relevant to the manner and cause of the death of Rachelle Childs, might criminate or tend to criminate the plaintiff of an offence,

(b) Not ruling that an objection in (a)(i) was properly made for the purposes of s 33CA.

(The declaration claimed in prayer 2 relates to the ruling made on 12 December 2006 which is recorded at T 31.21-42)

3. A declaration that the second defendant erred in ruling that each of the questions asked of the plaintiff on 15 and 21 December 2006

(a) to which objection was taken for the purposes of s 33CA, and

(b) which the defendant was required by the second defendant to answer, was not a question which might criminate or tend to criminate the plaintiff of an offence.

4. A declaration that the plaintiff was entitled to decline to answer each of the questions to which objection referred to in prayers 1, 2 and 3 hereof was taken.

5. An order that the second defendant determine the application made to her on 15 December 2006 for a certificate under s 33AA CA on the basis that as a matter of law she was entitled to grant that application in respect of the whole of the plaintiff’s evidence on 11 and 12 December 2006.

…

7. An order that the plaintiff not be examined in respect of the ‘significant development’ referred to by counsel assisting the Coroner in the transcript of proceedings on

· 20 November 2006, at p 3.47 and/or

· 11 December 2006, at p 6.21,

unless and until that ‘significant development’ has been disclosed to him on reasonable notice.

21 The relief claimed in prayer 6 was abandoned on the hearing of the amended summons.

22 A coroner holding an inquest concerning the death of a person is required under s 22(1) to record her findings as to the person’s identity, the date and time of the person’s death and, except in the case of an inquest continued or terminated under s 19, the manner and cause of the person’s death. Subsection (3) provides that such a record is not to indicate or in any way suggest that an offence has been committed by any person.

23 The coroner may make such recommendations as she considers necessary or desirable in relation to any matter connected with the death with which an inquest is concerned (s 22A(1)). Public health and safety are examples of matters that can be the subject of a recommendation as is a recommendation that a matter be investigated or reviewed by a specified person or body (s 22A(2)).

24 If at any time during the course of an inquest the coroner is of the opinion, having regard to all of the evidence given up to that time, that the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence and there is a reasonable prospect that a jury would convict, the coroner is to proceed in accordance with s 19(1B) of the Act and either record the findings of the coroner under s 22(1) or after taking evidence to establish the death, identity of the deceased and the date and place of death, to terminate the inquest. The coroner is required to forward the depositions to the Director of Public Prosecutions together with a statement specifying the name of the known person and the particulars of the offence in a case to which s 19 applies.

25 The nature of an inquest differs from that of an investigative process such as a Royal Commission. The coroner is obliged to exercise procedural fairness towards a witness whose interests might be adversely affected by the exercise of her powers under s 19 of the Act: Musumeci per Ipp JA at 199.

26 Section 33 of the Act gives statutory recognition to the privilege against self-incrimination. Section 33AA permits the coroner to require a witness to give evidence that may incriminate the witness of an offence in certain circumstances. The provisions are as follows:

33 Rules of procedure and evidence

33AA Privilege in respect of self-incrimination

(2) The coroner is to cause the witness to be given a certificate under this section in respect of the evidence if the objection is overruled but, after the evidence has been given, the coroner finds that there were reasonable grounds for the objection.

(3) If the coroner is satisfied that the evidence concerned may tend to prove that the witness has committed an offence or is liable to a civil penalty but that the interests of justice require the witness to give the evidence, the coroner may require the witness to give the evidence. If the coroner so requires, the coroner is to cause the witness to be given a certificate under this section in respect of the evidence.

(4) In any proceedings in a NSW court (within the meaning of the Evidence Act 1995):

(a) evidence given by a person in respect of which a certificate under this section has been given, and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given that answer,

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

(5) A certificate under this section can only be given in respect of evidence that is required to be given by a natural person.

27 In the plaintiff’s submission it is apparent from each of the rulings made by the Coroner that her Honour erred in that she adopted an unduly narrow test in determining his claim of privilege.

28 The privilege against self-incrimination is explained by Gibbs CJ in Sorby v The Commonwealth of Australia (1983) 152 CLR 281 at 288-289:

It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so ‘may tend to bring him into the peril and possibility of being convicted as a criminal’: Lamb v Munster ((1882) 10 QBD 110 at 111). The mere fact that the witness swears that he believes that the answers will incriminate him is not sufficient; ‘to entitle a party called as a witness to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer’: R v Boyes ((1861) 1 B & S 311 at 329–330). That statement of the law has frequently been approved; see Ex parte Reynolds; in Re Reynolds ((1882) 20 Ch D 294); Triplex Safety Glass Co v Lancegaye Safety Glass (1934) Ltd ([1939] 2 KB 395 at 403–4); in Re Westinghouse Uranium Contract Litigation ([1978] AC 547 at 612, 627, 647).

29 In R v Boyes (1861) 1 B & S [311] a witness objected to giving evidence on the ground that the evidence that he was being called upon to give would incriminate him. The witness was given a pardon, which he accepted, but he maintained his objection contending that the pardon did not protect him from impeachment by the House of Commons. The judgment of the Court was delivered by Cockburn CJ, who said (at [329] – [330]):

It was also contended that a bare possibility of legal peril was sufficient to entitle a witness to protection: nay, further, that the witness was the sole judge as to whether his evidence would bring him into danger of the law: and that the statement of his belief to that effect, if not manifestly made mala fide, should be received as conclusive.

We indeed quite agree that, if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself the effect of any particular question: there being no doubt, as observed by Alderson B, in Osborn v The London Dock Company (10 Exch 698, 701), that a question which might appear at first sight a very innocent one, might, by affording a link in a chain of evidence, become the means of bringing home an offence to the party answering

30 In R v the Coroner; ex parte Alexander [1982] VR 731 Gray J discussed the privilege against self-incrimination in the context of a coronial inquest. In that case the Coroner required a witness who was suspected of involvement in the killing of two members of a drug syndicate to answer each question asked of him in order to determine the claim to the privilege. The witness commenced proceedings in the Supreme Court for the issue of a writ of prohibition directed to the Coroner. His Honour explained the history of the privilege, noting (at 735):

The rule came to be extended beyond answers which would directly incriminate a witness to answers might be used as a step towards obtaining evidence against him. This wider privilege was well established by the early 19th Century. In R v Slaney (1832) 5 C&P 213, a witness was giving evidence at a prosecution for criminal liable in a newspaper advertisement. He stated that he knew who wrote to the proprietors with the advertisement but objected to stating the persons name. Lord Tenterden CJ upheld the witness’ objection stating:

‘You cannot only not compel a witness to answer that which will incriminate him, but that which tends to incriminate him: and the reason is this, that the party would go from one question to another, and though no question might be asked, the answer of which would directly incriminate the witness, yet they would get enough from him whereon to found a charge against him.’

His Honour continued:

In the light of the passages of the transcript to which I have referred, it is, in my opinion, clear that the applicant was objecting to being required to answer questions relevant to the inquiry on the ground that the answers may incriminate him. It was an objection in these terms which the Coroner was called upon to rule.

The Coroner, in his reasons for overruling the objection, made it clear that the applicant was required to answer questions put to him. The Coroner appeared to consider that it was only when the question was answered that its self-incriminating character could be judged. This approach to the problem was clearly misconceived and, if adopted, would rob the privilege of any effect.

Mr Meagher’s secondary submission was that the matter should be sent back to the Coroner with a direction that he consider each question individually and rule upon the objection in each instance. Mr Meagher submitted that there may well be relevant questions which the applicant could answer without fear of self-incrimination. Mr Meagher suggested that questions concerning the movements of members of the ring may be questions of that character. For my part, I cannot conceive of any question which could be seen to be free of any self-incriminating potential. (737.27-50)

His Honour made absolute the order nisi .

31 The relief that is claimed in prayer (1) arises out of the ruling made on 11 December 2006 on the plaintiff’s objection to giving evidence that I have set out above (T 11/12/06 11.30-39). The plaintiff, through his counsel, made a global objection to giving evidence on the basis that he was a suspect for the murder of Rachelle Childs and that any answer to a question relevant to the manner and cause of her death may criminate or tend to criminate him of an offence. Mr Lynch who appeared on the plaintiff’s behalf submitted that the objection was proper and it required that her Honour rule on it. He relied on the passage in Ex parte Alexander that I have set out above and on Decker v State Coroner (1999) 46 NSWLR 415 at 417 [2] and R v Rutledge; Ex parte Laidlaw [1923] St R Qd 284 in support of the submission.

32 Mr Singleton, who appeared for the defendant, acknowledged that a global objection to giving evidence at an inquest may properly be taken. In his submission her Honour’s statement, “it’s my view, having regard to s 33 and s 33AA that my role is to determine whether or not the answer that Mr Correll to such a question might tend to incriminate him” was not an assertion of lack of power but merely indicated that in the exercise of discretion she had determined that any claim of privilege was to be dealt with on a question by question basis. Her reasons were given ex tempore and were, in Mr Singleton’s submission, to be understood by reference to exchanges with counsel on the plaintiff’s earlier application that he not be called to give evidence.

33 Mr Singleton drew attention to his submission which was made in response to the plaintiff’s earlier application:

…[T]he appropriate course, as with the other witnesses where this issue has arisen, is to proceed question by question, at least for the time being. If we get to a point – and this is consistent with other witnesses – where it is necessary to say ‘right, well there’s a topic or an area that is incriminating’, then you might take a more expansive approach, but we’re far from that. (T 11/12/06 4.37-44)

34 The submissions which Mr Singleton put in opposing the plaintiff’s initial application included that the plaintiff was “in the same boat” as the other persons of interest and that there was nothing which would prevent him being asked questions concerning his knowledge of Rachelle Childs and his movements at the time of her presumed murder.

35 On the hearing of the amended summons Mr Singleton stated that the plaintiff was a prime suspect for the murder of Rachelle Childs. That the plaintiff was not in the same boat as other witnesses who had been called at the inquest may be thought to be apparent from the tenor of the examination on 12 December and from the exchange on 15 December that I have set out at paragraph [17] above. The submission that there was nothing to prevent the plaintiff being asked questions on topics including his knowledge of Rachelle Childs and his movements in the period surrounding her death misconceived the nature and scope of the privilege.

36 The plaintiff is a suspect for the murder of Rachelle Childs. It is apparent that his answer to a question “did you know Rachelle Childs?” may have a tendency to incriminate him. At the point the objection was taken the Coroner had been informed by the plaintiff's counsel that the focus of the third interview conducted by the police with the plaintiff made clear that he was suspected of the commission of the offence. In any event, the Coroner’s ruling was not that an insufficient foundation for the claim had been made but that any answer to the question could not have the tendency to incriminate the plaintiff. Such a determination bespeaks error.

37 The plaintiff through his counsel was asserting his right not to be compelled to give evidence that may incriminate him of an offence arising out of the death of Rachelle Childs. In my opinion the observations made by Gray J in Ex parte Alexander are apt to the circumstances of this case; it is difficult to conceive of a question relevant to the manner and cause of the death of Rachelle Childs that could be seen to be free of the potential to incriminate the plaintiff.

38 Mr Singleton submitted that there were grounds for the Coroner making a discretionary determination not to allow a global objection to giving evidence. They were identified as follows:

· The plaintiff’s counsel submitted in support of the objection that “it is not my position to suggest that Mr Correll, by his answers, believes that he would be incriminating himself. He is concerned that … [he] may tend to incriminate himself by … minor inconsistency” (T 11/12/06 7.51-8.1).

· Although submissions had been advanced in support of the application that the plaintiff not be called to give evidence, neither the plaintiff nor his counsel, “advanced any reason in support of trying to take a global objection, either at all or at that stage in the proceedings. Nor was the attempt to raise a global objection made with any vigour. Rather, when counsel foreshadowed the global objection he simply told the Coroner what advice had been given to Mr Correll and said “I expect your Honour will disagree … I expect your Honour will overrule that and from that point, I don’t intend to press the issue further” (T 11/12/06 8.14-18).

39 Each of these submissions lacks merit. The first misunderstands that answers that are not incriminatory on their face may nonetheless possess the requisite tendency and are susceptible of proper objection. The second overlooks counsel’s earlier submissions in which he put to the Coroner that his client had been questioned as a suspect for the murder of Rachelle Childs.

40 In any event, her Honour does not appear to have determined in the exercise of discretion that she would not allow a global objection at point at which it was taken. She said that it was her role, having regard to s 33 and s 33AA, to determine the objection to the question. In this respect as becomes more apparent in later exchanges her Honour appears, wrongly, to have approached the objection upon the basis that s 33AA bears on the determination of the claim. The determination of an objection to answering a question (or giving evidence on a topic or at all) is determined by whether the evidence “criminates, or tends to criminate the witness, of any offence”. In the event that the evidence has that tendency the coroner may nonetheless compel the witness to give it, but only in accordance with s 33AA, which requires, inter alia, that the coroner be satisfied that the interests of justice require the witness to give the evidence.

41 Her Honour erred in not determining the plaintiff’s global objection to giving evidence by considering his claim, namely, that his answer to any question relevant to the manner and cause of the death of Rachelle Childs was one which “criminates …, or tends to criminate” him of the offence without regard to the provisions of s 33AA of the Act. In the event that she determined to uphold the objection it was open to her, in the exercise of discretion, to consider whether to require the plaintiff to give evidence pursuant to the provisions of s 33AA.

42 Section 33AA was introduced into the Act by the Courts Legislation Amendment Act 2000. It followed the decision of this Court in Decker. In that case the Coroner upheld a claim of privilege made by a geologist in the employ of the New South Wales Roads and Traffic Authority, whose responsibilities had included planning and execution of a range of geo-technical work relating to the Alpine Way, at the inquest into the Thredbo landslide. It is not difficult to think of cases in which there may exist a public interest in requiring a witness to give evidence notwithstanding that it may tend to prove that the witness has committed an offence or be exposed to liability for a civil penalty. The public interest in requiring a prime suspect in the investigation of a murder to give evidence at the inquest which may incriminate him or her, subject to immunising the evidence under a s 33AA certificate, is less apparent.

43 The plaintiff claims declaratory relief of the same character as that claimed in prayer 1 arising out of the Coroner’s determination of his further application not to be compelled to answer questions on the ground of self-incrimination, which was made on 12 December (the objection is recorded at T 28.37 and following) and is set out at [13] above.

44 The Coroner appears to have determined the application upon an acceptance of Mr Singleton’s submission that it was necessary for the plaintiff to identify with some specificity why answers might have the tendency to incriminate him. Her Honour said this:

There must be, as Mr Singleton suggests, something more specific than that. So Mr Johnston, the ball is back in your court so to speak. I will allow the questions to be asked with each particular question. If you are instructed on behalf of your client to raise the objection so be it and I will consider it on a question by question basis. But at this stage I do not see that s 33AA is meaningfully invoked (T 12/12/06 31.35-42).

45 Mr Johnston’s objection was to the plaintiff being required to answer questions concerning his movements in the period surrounding the death of Rachelle Childs. It was not an answer to this objection to submit as Mr Singleton did that the answer to a question – do you want to work forwards or backwards – was not of itself susceptible of incriminating the witness. It is with respect difficult to see how answers by a person who is a prime suspect for the offence of murder concerning his movements in the period surrounding the death of the victim may not possess a tendency to incriminate.

46 Her Honour approached the plaintiff’s application on the basis that “s 33AA had not been meaningfully invoked”. Her Honour appears to have been of the view that she was to determine the objection by considering whether it was to giving “particular evidence” within the meaning of s 33AA(1) and that an objection to evidence concerning the plaintiff’s movements lacked the necessary particularity. Again, it was necessary for her Honour to determine the plaintiff's objection in accordance with the terms of s 33. It was an error to approach the matter on the basis that s 33AA had not been invoked.

47 Prayer 3 of the amended summons claims a declaration that the Coroner erred in ruling that each of the questions asked of the plaintiff on 15 and 21 December 2006 to which objection was taken for the purposes of s 33 of the Act and which the plaintiff was required to answer was not a question which might criminate or tend to criminate him of an offence.

48 Counsel assisting challenged the plaintiff’s claim in relation to a number of questions which sought to obtain his agreement that he had previously given evidence of certain matters. (T 15/12/06 22.58; 25.57) It was submitted that answering such questions could not incriminate the plaintiff. The Coroner accepted these submissions and directed the plaintiff to answer the questions. (T 15/12/06 24.7-8; 26.31) The circumstance that the plaintiff may have already given evidence of the matters (being evidence that was the subject of an undetermined application for the issue of a certificate under s 33AA(3) of the Act) was not a basis for requiring him to answer the question if his answer criminated him or had a tendency to criminate him. For the reasons that I have earlier given, in the circumstances it is difficult to see that his answer to a question such as “you’ve already given evidence this week to the effect that you have read a number of things about this case in the news media?” could not be said to have the requisite tendency (T 15/12/06 22.55-57). The same observation is to be made of the question “did you give evidence earlier in this inquest to the effect that on the night of 7 June 2001 you went to Tahmoor and purchased some food”. (T 21/12/06 1.42-44)

49 On 21 December the Coroner directed the plaintiff over objection to answer questions concerning the number of times he had been legally married and the name of the person to whom he had been married. (T 21/12/06 19.21-24) (The name of that person was the subject of an application by counsel assisting for a pseudonym order.) It is to be observed that if the purpose of asking the questions was not to develop what Mr Singleton in written submissions has referred to as a case theory, it is difficult to see what conceivable relevance they had. The plaintiff should not have been required to answer them.

50 In written submissions Mr Singleton contended of the objections taken by the plaintiff, which are the subject of the relief claimed in prayer 3, that some of the objections were misconceived, while others arguably were not. In respect of the latter he submitted that it should be noted that at least to some extent the Coroner had been faced with his submissions, that the questions did not attract privilege, and with Mr Johnston mounting arguments that were not those raised in this Court. By the time a number of the questions that are the subject of the present claim for relief were asked it had been put to the plaintiff that he had killed Rachelle Childs. It having been put, in my opinion counsel should not have pressed for answers to questions, which were presumably considered to be relevant to the manner and cause of Rachelle Childs’ death. That Mr Johnston did not frame his submissions in the same way as Mr Lynch is hardly to the point. I am of the opinion that her Honour erred in each ruling made on 15 and 21 December by which she required the plaintiff to answer a question to which he objected on the ground of the privilege against self-incrimination.

51 I turn now to the relief claimed in prayer 5. The claim arises out of the application made on the plaintiff’s behalf of 15 December 2006 for a certificate under s 33AA of the Act in respect of the whole of his evidence given on 11 and 12 December 2006 (T 15/12/06 2.32). In written submissions Mr Singleton contended that in the exercise of discretion the Court should decline to grant the relief that is sought. Such a refusal, it is noted, would not preclude a later application to this Court should the Coroner err in making a determination under s 33AA.

52 When Mr Johnston applied for a retrospective certificate under s 33AA(2) of the Act, counsel assisting did not submit that there were not reasonable grounds for the application. He raised an issue concerning the Coroner’s power to grant the certificate. The submission that he put is the submission that has been advanced in this Court. It is argued that s 33AA is only enlivened if a witness has objected to giving “particular evidence” on the ground of self incrimination (subs (1)). Unless the objection is to the giving of “particular evidence” counsel submitted to the Coroner that “one doesn’t get to subs (2) or subs (3)” (T 15/12/06 6.57-58). The Coroner described the submission as of “compelling strength”. (T 15/12 06 8-6) Her Honour did not finally determine the matter.

53 In written submissions in this Court Mr Singleton acknowledged that the expression “particular evidence” is imprecise. He accepted that it may not be confined to the answer to a particular question. He submitted that s 33AA may apply in a case in which a witness objects to giving evidence on a particular topic. His point is that an objection to giving “particular evidence” does not extend to an objection to giving any evidence. Mr Singleton concedes that the objection taken on 12 December (at T 29) to answering questions concerning his movements in the period surrounding the death of Rachelle Childs be an objection to giving “particular evidence”, but the plaintiff’s global objection taken at the commencement of his evidence on 11 December would not.

54 Mr Lynch points to the terms of s 33, which provides that “no witness shall, except in accordance with s 33AA, be compelled”. He submits that it is the objection which enlivens the power under s 33AA to compel answers, albeit it that in such a case a s 33AA certificate must issue. It follows that the “particular evidence” to which s 33AA(1) refers is that which is the subject of proper objection under s 33. In his submission s 33 requires a non-discretionary judgment, does the question “…criminate or tend to criminate”, and enlivens a discretionary power under s 33AA, that a witness may nevertheless be compelled to answer. I accept that is so.

55 The defendant acknowledged that a global objection to giving evidence may be properly taken under s 33 of the Act. Accepting for present purposes Mr Singleton’s submission that the more usual course is for the objection to be taken to particular questions or topics, in this case given the way the inquest was opened and the submissions made by Mr Johnston, the global objection that was taken was proper and the Coroner was required to rule on it. Her Honour’s approach to the determination of the objections pursuant to s 33 was infected by error. She has an application for the issue of a retrospective certificate under s 33AA(2) pending before her. I do not consider that I should make the order that is claimed in prayer 5 of the amended summons since the Coroner will no doubt determine the application conformably with these reasons.

56 I come now to the relief that is claimed in prayer (7) of the amended summons. The plaintiff seeks an order that he not be examined in respect of the “significant development” referred to be counsel assisting on 20 November 2006 (at T 3.47 and/or on 11 December 2006 at T 6.21) unless and until that “significant development has been disclosed to him on reasonable notice. In support of this relief reliance is placed on Musumeci.

57 In written submissions addressed to this claim for relief Mr Singleton contended:

The plaintiff, although said last year to be a prime suspect, has never been the only suspect and the ‘case theory’ that relates to him has never been, and is not now, the only one.

58 Mr Singleton’s submissions were filed by leave after the hearing had been completed. The leave was granted because the defendant had found it necessary to meet a case in the amended summons that very substantially refined the claims made in his summons. The defendant had no notice of the amendments and may not have appreciated features of the plaintiff’s case including the criticisms made by Mr Lynch to which I have referred in paragraph [3] above. The latter submission was not further developed. It is sufficient to observe that the examination of the plaintiff has been conducted in a manner that at times appears not to recognise the limitations on role of the coroner in conducting an inquest which were explained in Maksimovich v Walsh (1985) 4 NSWLR 318 per Kirby P at 326; and more recently in Musumeci. The passage that I have set out at [17] serves to make the point.

59 In light of the examination set out at [17] above, the defendant’s written submissions extracted at [57] above are difficult to understand. The submissions lend colour to Mr Lynch’s complaint that the examination of the plaintiff has been conducted for a forensic purpose foreign to the proper conduct of the inquest. I am not inclined to chide the plaintiff for a lack of balance in the presentation of his case or in apprehending that counsel assisting’s opening related mainly to him.

60 Mr Singleton knows what significant development or developments is or are contained in his brief. He does not submit that the significant development or developments does not or do not relate to the plaintiff. The plaintiff has made good his entitlement to the order that he seeks in prayer (7) of his amended summons.

61 The defendant submitted that the declaratory relief sought in prayer (1) should be withheld for reasons, which include that any error by the Coroner had been contributed to by the plaintiff's counsel failing to identify the relevant power; cite relevant authority; give reasons for the exercise of the relevant power and, generally, the “resigned” approach taken before the Coroner. In light of the matters that I have set out above this submission should be rejected.

62 It was also put that the declaratory relief that is sought should be withheld because the plaintiff had substantially changed his case in the way it is advanced by his amended summons and not revealed “his true claims until the day of the hearing”. This was acknowledged to be a consideration of relatively little weight. In the circumstances of this case I consider that this consideration should not stand in the way of granting the plaintiff the declaratory relief that he claims.

63 Mr Singleton submitted that he would wish to be heard on the question of the costs which are said to have been thrown away by reason of the late amendment of the plaintiff’s summons. I will defer making an order for costs to afford the parties an opportunity to be heard on this issue.

ORDERS

(a) ruling that

Coroners Act

(a) ruling that

(i) s 33 of the Coroners Act did not entitle her to consider as an objection there under the objection to questioning made by the plaintiff on 12 December 2006 recorded at T 28.37 and following,

Coroners Act

(b) which the plaintiff was required by the second defendant to answer, was not a question which might criminate or tend to criminate the plaintiff of an offence.

4. Declare that the plaintiff was entitled to decline to answer each of the questions to which objection referred to in prayers 1, 2 and 3 was taken.

· 20 November 2006, at T 3.47 and/or

· 11 December 2006 at T 6.21,

**********

17/12/2007 - Typographical error - Paragraph(s) [9]

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Citations

Correll v Attorney General of NSW [2007] NSWSC 1385

Most Recent Citation

Rich v Attorney General of New South Wales [2013] NSWCA 419

Cases Citing This Decision

1

Rich v Attorney General of New South Wales [2013] NSWCA 419

Cases Cited

4

Statutory Material Cited

1

Musumeci v Attorney General of NSW [2003] NSWCA 77

Sorby v the Commonwealth [1983] HCA 10

CITATION:	Correll v Attorney General of NSW [2007] NSWSC 1385 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23/11/07
JUDGMENT DATE :	17 December 2007
JUDGMENT OF:	Bell J at 1
DECISION:	1. Declare that the second defendant erred in ; (a) ruling that; (i) s 33 of the Coroners Act did not entitle her to consider as an objection there under the objection to questioning made by the plaintiff on 11 December 2006 recorded at T 11.12 and following; (ii) That she did not, for the purposes of s 33 of the Coroners Act, need to consider whether any question of the plaintiff concerning the manner and cause of the death of Rachelle Childs might criminate or tend to criminate the plaintiff of an offence,; (b) not ruling that the objection in (a)(i) was properly made for the purposes of s 33 of the Coroners Act; 2. Declare that the second defendant erred in; (a) ruling that; (i) s 33 of the Coroners Act did not entitle her to consider as an objection there under the objection to questioning made by the plaintiff on 12 December 2006 recorded at T 28.37 and following,; (ii) that she did not, for the purposes of s 33 of the Coroners Act, need to consider whether any question asked of the plaintiff concerning his movements and activity in the week from Sunday 3 June 2001 to 10 June 2001, insofar as it was relevant to the manner and cause of the death of Rachelle Childs, might criminate or tend to criminate the plaintiff of an offence,; (b) not ruling that the objection in (a)(i) was properly made for the purposes of s 33 of the Coroners Act; 3. Declare that the second defendant erred in ruling that each of the questions asked of the plaintiff on 15 and 21 December 2006; (a) to which objection was taken for the purposes of s 33 of the Coroners Act, and; (b) which the plaintiff was required by the second defendant to answer, was not a question which might criminate or tend to criminate the plaintiff of an offence; 4. Declare that the plaintiff was entitled to decline to answer each of the questions to which objection referred to in prayers 1, 2 and 3 was taken; 5. Order that the plaintiff not be examined in respect of the “significant development” referred to by counsel assisting the Coroner in the transcript of proceedings on; 20 November 2006, at T 3.47 and/or; 11 December 2006 at T 6.21,; unless and until that “significant development” has been disclosed to him on reasonable notice
CATCHWORDS:	INQUEST - privilege against self-incrimination
LEGISLATION CITED:	Coroners Act 1980
CASES CITED:	Decker v State Coroner (1999) 46 NSWLR 415 Maksimovich v Walsh (1985) 4 NSWLR 318 Musumeci v Attorney General of New South Wales [2003] NSWCA 77; 57 NSWLR 193 R v the Coroner; ex parte Alexander [1982] VR 731 R v Rutledge; Ex parte Laidlaw [1923] St R Qd 284 Sorby v The Commonwealth of Australia (1983) 152 CLR 281
PARTIES:	Kevin Correll (Plaintiff) Attorney General of NSW (1st Defendant) Deputy State Coroner (2nd Defendant)
FILE NUMBER(S):	SC 12541/07
COUNSEL:	T Lynch (Plaintiff) P Singleton (1st and 2nd Defendants)
SOLICITORS:	SE O'Conner (Plaintiff) Crown Solicitors Office (1st and 2nd Defendants)
LOWER COURT JURISDICTION:	Coroners Court of NSW
LOWER COURT JUDICIAL OFFICER :	Magistrate Culver