Fairfax Publications Pty Ltd v Abernethy

[1999] NSWSC 820

CITATION:	FAIRFAX PUBLICATIONS PTY LTD v ABERNETHY [1999] NSWSC 820
CURRENT JURISDICTION:	Administrative Law List
FILE NUMBER(S):	30015/99
HEARING DATE(S):	20/04/99, 21/04/99, 21/05/99, 27/05/99
JUDGMENT DATE:	13 August 1999
PARTIES :	John Fairfax Publications Pty Limited (Plaintiff) John Abernethy (Defendant) Attorney General (Intervening)
JUDGMENT OF:	Adams J at 1

LOWER COURT JURISDICTION:	Coroners Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	Mr T D Blackburn (Plaintiff) Mr M J Leeming (for Attorney General)
SOLICITORS:	Freehill Hollingdale & Page (Plaintiff) I V Knight (for Attorney General)
CATCHWORDS:	Coroner; inquest with open finding; whether concluded; whether coroner functus officio; fresh inquest; nature of jurisdiction; non-publicatin order
ACTS CITED:	Coroners Act 1980 Intrepretation Act 1987
CASES CITED:	Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 Attorney General v Maksimovich (1985) 4 NSWLR 300 John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 456 Maksimovic v Walsh [1983] 2 NSWLR 656 Attorney General v Mirror Newspapers [1980] 1 NSWLR 374 Civil Aviation Authority v ABC (1995) 39 NSWLR 540 R v White (1860) 121 ER 394 Hoban v Davey (1972) 1 NSWLR 59 NSW Insurance Ministerial Corp v Edkins (1998) 45 NSWLR 8 Leung v Minister for Immigration (1997) 79 FCR 400 Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor, unreported, Federal Court of Australia, Goldberg J 25 June 1997 Winters v Cross (1976) 1 NSWLR 616
DECISION:	Summons dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

FRIDAY 13 AUGUST 1999

30015/99

JOHN FAIRFAX PUBLICATIONS PTY LIMITED v JOHN ABERNETHY

JUDGMENT

1    HIS HONOUR: On 18 June 1995 police were advised that a body had been located at the base of the cliffs at Watsons Bay in Sydney. The body was identified as that of Caroline Byrne, who had died from injuries sustained when she fell from the Gap. In due course, a coronial hearing was convened. After taking evidence, the Senior Deputy State Coroner (the Coroner) on 11 February 1998 found that Ms Byrne died on or about 7 June 1995 at Watsons Bay of multiple injuries sustained when she impacted with the rocks below the Gap but, as to how she came to impact with those rocks, the evidence adduced did not enable him to say. When the Coroner announced these findings in open court he added -

“With an open finding, the police, I can assure you, are still interested - very interested - in it and will be seeing whether they can take the matter any further. They know that the Coroner is still very interested in it and for that reason alone will analyse the evidence and see what more can be done. If anything comes out, of course they will follow it up.”

This is not language indicative of a conclusion of an inquest, as distinct from a hearing or series of hearings.

2    Some time after this, certain information came to the attention of police who communicated it to the Coroner. For present purposes, what happened is sufficiently stated in a press release issued on 22 October 1998 at the Coroner’s direction in the following terms -

“The NSW Senior Deputy State Coroner, Mr John Abernethy, today reopened his inquest into The Death of Caroline Theresa Byrne. Caroline Byrne was found at the foot of “the Gap” Watsons Bay on 8 June 1995. In February this year the Coroner recorded an open finding as to the circumstances of her death.
“The Coroner today heard evidence of the detail of the ongoing police investigation which was requested by him at the conclusion of his inquest into Caroline Byrne’s death. He heard evidence from a senior police officer attached to the Homicide and Serial Violent Crime Agency Crime Agencies NSW Police Service and formed the opinion that such evidence, and the detail of the ongoing police investigation , if placed in the public domain will be likely to seriously compromise such investigation so as to be likely to adversely affect the proper administration of justice.
“He therefore, on adjourning his inquest generally, ordered pursuant to s 44, Coroners Act 1980, in the following terms -
That all evidence given this day at inquest into the death of Caroline Theresa Byrne be not published until further order of the Court”.

It is clear, and indeed the Coroner himself said so at the reopened inquest, that he received the further evidence comprising the statement of the relevant police officer together with certain annexures at the suggestion of the officers investigating the matter. This material, the Coroner said, was prepared “in order to make a decision about whether to reopen this inquest”. The Coroner stated that he was “re-opening my inquest” which was “concluded on 11 February this year” with an “open finding”. He added that when he brought in the open finding, he referred the inquest papers to the Crime Agency of the NSW Police Service because, “I was far from satisfied that I had been presented with the entire picture in relation to the circumstances of the death . . .” and that he had been “particularly interested in having the evidence reviewed by experienced homicide investigators with a view to considering and advising me whether, in their view, further investigation should take place”. His Worship said that it was decided to undertake further investigation which was ongoing and which had then reached “an extremely sensitive stage”.

3 The Coroner said that he had been reliably informed that there was a likelihood that publication was imminent of an article in the press “on the essence or nature and details of the continuing investigation”. He said that, upon receiving and considering advice from the New South Wales Crown Solicitor, he determined to re-open the inquest, hear evidence from the police as to the investigation, and the likelihood of publication about it and ensure that the investigation was not compromised by such publication. His Worship formed the opinion that “the present investigation on my behalf is extremely sensitive and that publication of its details and its nature may be likely to adversely affect the administration of justice within the meaning of s 44, particularly ss 5 and 5, of the Coroners Act 1980” (the Act) and consequently made the suppression order. The Coroner then adjourned the inquest. 4 Having regard to what the Coroner himself said and, anyway, to what actually occurred, it is obvious that the essential reason for reconvening the inquest in a public hearing was to make the suppression order. It is also clear that, so far as the terms of the order itself are concerned, no one who was ignorant of the substance of the statement of the officer and its annexures could know what the evidence was which was not permitted to the published. The Coroner directed the executive officer to forward a press release to the media liaison officer of the Attorney General’s Department, the New South Wales Police Service media unit and AAP, and also specifically mentioned the editor of the Sun Herald. 5 Not surprisingly, the plaintiff, which owns the Sun Herald, wrote to the executive officer on 23 October 1998 asking him to disclose the evidence given at the hearing which was suppressed to enable the effect of the order to be understood. It is not contested that no reply was given. On 22 October 1998 the Sun Herald published a number of statements which, it is alleged, were in breach of the non-publication order. The informations do not, however, assert that the source of the published information was the evidence tendered in the coronial hearing on 22 October 1998. 6 For completeness, I should note that, as it happened, the Coroner convened another hearing on 24 December 1998 from which all “civilians” were excluded and all the evidence was again subjected to a non-publication order. 7 The plaintiff seeks a declaration, in effect, that the Coroner, in all the circumstances, did not have any power under s 44 of the Act to make the order to which I have referred. It is not, however, sought to litigate before me whether the order is invalid by virtue of its terms or whether any offence was committed by the publication of the material particularised in the informations. Section 44 of the Act provides -

“(5) A coroner holding an inquest or inquiry may, if of the opinion that it would be in the public interest to do so, order:
(a) all or any persons to go and remain outside the room or building in which the inquest or inquiry is being held, or
(b) that any evidence given at the inquest or inquiry being held by the coroner not be published.
(6) For the purposes of subsection (5), in forming an opinion as to the public interest, a coroner may, without limitation, have regard to the administration of justice, national security or personal security.”

It will be seen that the order that material not be published is confined to “any evidence given at the inquest . . . being held by the coroner”. The jurisdiction, powers and duties of coroners are confined to those conferred or imposed on them by or under the Act (s 8) together with all necessary incidental powers. The jurisdiction exercised in this case by the Coroner was conferred on him by s 13 of the Act, arising as it did in the circumstances described in s 13(1)(a) (a violent or unnatural death), (b) (a sudden death the cause of which is unknown) and/or (c) (dying under suspicious or unusual circumstances). The relevant procedures are governed by Part 4 of the Act, s 17 of which requires the coroner to fix a time and place for the commencement of the inquest and give particulars of the same to various persons. Section 18 requires the inquest to be held before a coroner without a jury subject to irrelevant exceptions. Section 19 applies where a person has been charged with an indictable offence or evidence given at the inquest establishes a prima facie case against a person for an indictable offence material to the cause of death. Section 20 permits, in certain circumstances, a further inquest following a termination under s 19. Section 22 requires a coroner’s finding to be recorded at the conclusion or termination of the inquest. Section 23 permits a fresh inquest concerning a death to be held even though a prior inquest had been concluded. Section 23A requires a fresh inquest to be held into a death where an application has been made by specified persons and the State Coroner considers that the discovery of new material makes it necessary or desirable in the interests of justice to do so. Section 23A(5) provides, however, that this provision does not limit or otherwise affect any other power of a coroner to hold a fresh inquest. Section 30 requires the room or building in which an inquest is held to be open to the public and permits examination on oath of persons who tender relevant evidence or are able to give relevant evidence. Section 32 permits persons to appear by leave either personally or by counsel or a solicitor and to examine and cross-examine any witnesses. Section 33 provides that a coroner is not bound to observe the rules of procedure and evidence applicable to proceedings before a court of law but even so, cannot oblige a witness to give evidence tending to incriminate him or her. Section 34 requires a deposition of every witness at an inquest to be recorded. Section 35 permits the issue by the coroner of a summons for appearance of a witness or a warrant for his or her apprehension. Section 43 gives a limited power to a coroner to punish for contempt and section 44, to which I have already referred, (amongst other things) permits a coroner holding an inquest to order persons to leave the hearing room and order that evidence given at the inquest be not published.

8    It will be seen from this brief survey of the procedural structure in which the coroner’s jurisdiction is exercised that his or her essential function is to conduct a hearing in the presence of interested persons and of the public with a view to answering the statutory questions. The Act does not give the coroner any jurisdiction to conduct an investigation, as such. He or she is enjoined by the Act to hold an inquest. Insofar as it may be incidental to the exercise of that jurisdiction, there can be no doubt that the coroner has a power to investigate and to request others to make relevant investigations. This is in marked contrast to the coroner’s original functions. Sir James Stephen, in his History of the Criminal Law of England (McMillan & Co, (1993) Vol I, Ch VII at 217 ff) relates the history of coronial inquests, pointing out that they comprised the “earliest instance that occurs of any set of preliminary inquiry into crimes with a view to subsequent proceedings”. The investigative function in respect to suspicious deaths was fundamental to the Coroner’s jurisdiction. Stephen notes that the “inquisition of the coroner always was and still is [as at 1882] a formal accusation of any person found by it to have committed murder and manslaughter . . . and a person may be tried upon such an inquisition without any further accusation”. The supersession of these duties is adverted to in Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1. The function of investigating crime as such was emphatically removed from the coronial jurisdiction in New South Wales by the 1960 Act, and designedly so, as reference to the Parliamentary debates on the Second Reading, set out in Attorney-General v Maksimovich (1985) 4 NSWLR 300 at 305 ff, makes clear. The purpose of investigations from the Coroner’s point of view, is to permit the inquest to be conducted for the purpose specified in s 13 of the Act and, subject to the considerations in s 44 and the exceptional circumstances referred to in s 32 concerning representation, in a public hearing involving the participation of persons with a sufficient interest in the subject matter and relatives of the deceased. It is necessary to consider carefully the setting and purpose of ss 44(1) and (5) of the Act. Section 44(1) is in the following terms -

“(1) A coroner holding an inquest or inquiry may order:
(a) any witness or all of the witnesses to go and remain outside the room or building in which the inquest or inquiry is being held until required to give evidence, or
(b) that any evidence given at the inquest or inquiry being held by the coroner be not published.”
This provision (and s 44(5), set out earlier) overcomes the doubt noted by Kirby P (as he then was) in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 ff) as to the general power of the courts (as distinct from particular matters in limited circumstances) to make orders operating outside the court suppressing the publication of anything said open court and, by extension, anything tendered in open court in documentary form (cf John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 456 at 471-2). Although, generally speaking, apparently unqualified powers given by statute to public officials can only be exercised to enable that official to appropriately fulfil his or her function, section 44(5) of the Act is not so limited. Whilst the coroner can only make an order if he or she is satisfied that it would be in the public interest to do so, ss 44(6) permits the coroner in forming that opinion to “without limitation, have regard to the administration of justice, national security or personal security”. It seems to me that the effect of this provision is to permit the coroner to order that evidence given at an inquest not be published where the public interest might be adversely affected in the specified respects, whether or not the course of the inquest itself might be compromised. However, such an order can only be made where an inquest is being held and the exclusive purposes of such an inquest are (relevantly) set out in s 13 of the Act, the material provisions of which I have summarised above. The submission made by the plaintiff is correct, therefore, that holding an inquest for another purpose, namely solely to make an order under s 44 of the Act, is not authorized by the Act and that any orders made in such an event are without jurisdiction and void.

9    That, however, does not dispose of the question here. As I have already mentioned, although the jurisdiction of coroners is now determined by the Act, it does not constitute a code and it is necessary to consider the extent of the incidental powers which are necessary for the proper administration of the coronial function: Maksimovic v Walsh [1983] 2 NSWLR 656 at 662. The coroner’s involvement in the investigation of a suspicious death is, in my view, incidental to the exercise of the jurisdiction to hold an inquest and is not an independent function. In Mirror Newspapers v Waller (1985) 1 NSWLR 1 at 16, Hunt J said -

“At least one of the coroner’s functions, in particular, would make an observance of the usual rules of procedure and evidence an impossibility. I refer to the coroner’s residual investigatory function. Historically, the coroner investigated all cases of sudden death. He did so because his duties originally were fiscal in nature, and the unnatural death of a citizen could produce revenue to the Crown. According to the Statute De Officio Coronatoris , of 1276, the coroner was obliged to determine where such a person was slain, who was present and who was guilty. Since the establishment of a regular police force, this investigatory function of the coroner has been largely, but not entirely, superseded. According to a report of the Chief Justice’s Law Reform Committee , submitted in 1964 (and published in Appendix B to the Report of the Law Reform Commission on the Coroners Act, 1960 (LRC 22 1975)) a coroner’s inquest is still used as an aid to the police, in order to afford them an opportunity of furthering their investigations by the examination and perhaps cross-examination of witnesses under oath (par 3 at 88). That was the nature of the inquiry which the coroner was conducting in the present case in the “preliminary part” of the inquest into the death of Mrs Watson, and which was the subject of the prohibition order pursuant to s 44(1).”

It is worth noting that the views expressed by his Honour about the appropriate circumstances in which to make a non-publication order were influenced by the then statutory requirement to hold the inquest in public, permitting exclusion from the hearing only of witnesses, as provided in s 44(1)(a). Section 44(5)(a) now extends this power to “all or any persons” with the consequence that, despite the provisions of s 30 requiring an inquest be open to the public, where the public interest requires it, the coroner may proceed in camera. The rules adapted from the mode by which the ordinary courts exercised their power to hear matters in the absence of the public which was limited to those circumstances where “the publicity which would be afforded by reports of those proceedings by the news media would frustrate or render impracticable the administration of justice” ( ibid (1985) 1 NSWLR at 20) does not apply to a coroner’s court which may also have regard to national or personal security under s 44(6) of the Act. These latter considerations do not, in terms at least, arise here since the Coroner imposed the order upon the ground expressly that publication of material that had been tendered would adversely affect the administration of justice. There was, for obvious reasons, no disclosure by the Coroner of the ways in which he apprehended the administration of justice might be adversely affected. Having regard to the view that I have formed as to the jurisdiction to make the order, I do not propose to expose in this judgment the circumstances that might have led to this conclusion. Having regard, however, to the nature of the case, the evidence given which led to the open finding and to the particulars in the informations, it is possible to discern a number of proper bases from which such a conclusion might properly have been drawn. I should point out that the attack mounted by the plaintiff in this case is aimed at the existence of the jurisdiction of the Coroner’s Court to make the order in the circumstances rather than any error of law causing the exercise of that jurisdiction to miscarry. Even so, these questions are not entirely disconnected.

10    In John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 476-477, McHugh JA said -

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more than is “necessary to enable it to act effectively within” its jurisdiction. Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative - not judicial - power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself. I think that the above statement of the applicable principles is in accordance with the way in which this branch of the law has developed.”

11    In Mirror Newspapers v Waller, Hunt J pointed out (at (1985) 1 NSWLR 25) -

“I am satisfied that the publication by the news media of reports of the proceedings in this ‘preliminary part’ of the inquest would constitute a serious denial of natural justice to those persons named in the proceedings if they were not represented during those proceedings. The publicity to be given to the allegations to be made during those proceedings would in my view necessarily require that the coroner should not have permitted them to be made without affording natural justice to those persons in the way which I have already outlined. This, it seems to me, would have the inevitable effect of frustrating or rendering impracticable the very purpose for which the witnesses were to be called, which was to enable the police to test their reliability before deciding whether to pursue their allegations any further.
That is my own view. But, whether I am right or wrong in coming to that conclusion, it was certainly open to the coroner to come to the same conclusion and to decide, upon the basis of that conclusion, that to permit the publication by the news media of reports of that part of the proceedings would frustrate or render impracticable the administration of justice. . .”


The jurisdiction of the coroner’s court to make non-publication orders may be, at all events, wider than that of the ordinary courts for reasons independent of ss 44(1) or (6).

Section 44(5) gives the Coroner’s Court a specific power to make non-publication orders binding persons not connected with the proceedings in respect of their conduct outside the courtroom, limited only by the requirement that the power only be exercised where it is in the public interest to do so, having regard, inter alia , to the administration of justice. I am of the view that a proposed or potential publication which would constitute a contempt by virtue of its “tendency to interfere with the due administration of justice in particular proceedings, unless the possibility of interference is so remote or theoretical that the principle de minimus no curat lex should be applied” ( Attorney General v Mirror Newspapers [1980] 1 NSWLR 374 at 387) could appropriately be subjected to a non publication order under s 44(5) so that, for example, “the publication of statements, by persons likely to be called as witnesses, about the matters in respect of which they will be likely to give evidence is, subject to the de minimus rule”, not only contempt ( ibid ) but also within the power of the Coroner’s Court to prohibit. The mere fact that a prospective or potential witness has made a statement outside the Coroner’s Court and not to police or other persons officially connected with the investigation but, say to a reporter, might well not exclude a conviction for contempt, not only of the putative witness but also by the publishing press, if it were published, for the reasons discussed in Civil Aviation Authority v ABC (1995) 39 NSWLR 540 at 551 by Kirby P.

12 The plaintiff relies upon the circumstance that, as the Coroner himself said on 22 October 1998, the inquest into the death of Caroline Theresa Byrne had concluded on 11 February of that year with an open finding. He declared that he was reopening that inquest. 13 As I have already noted, the changes brought about by the 1960 Act had the effect of removing the investigation of crime from the functions of the coroner insofar as that might have been an object of the conduct of an inquest. Thus, if the earlier inquest had been concluded, the mere existence of a continuing investigation by police, whether or not the Coroner was kept informed of its progress or even recommended its continuance or direction, could not confer a jurisdiction to make order under ss 44(1) or (6). 14 However, I am far from convinced that the inquest was concluded in any sense affecting the jurisdiction of the Coroner in respect of Ms Byrne’s death. The statutory function of the inquest in this case is to arrive at findings, if possible, as to the deceased’s identity, the date and place of that person’s death and, except as provided by s 19 relating to indictable offences, the manner and cause of the person’s death : s 22(1) of the Act. Here, the Coroner made findings as to the identity of the deceased and the date, place and cause of her death, but not as to its manner. If it is relevant to determining the matter in issue, I consider that what occurred on 22 October 1998 was that the Coroner was not conducting a fresh inquest; rather, he was reconvening or resuming the inquest, the hearings of which had been concluded on 11 February 1998. Although it might have well been the case that the inquest, considered as a hearing, had concluded, I am of the view that the Coroner’s jurisdiction with respect to Ms Bryrne’s death had not been exhausted since he had not been in a position to make a finding as to the manner of her death. It is trite that an inquest is not a litigation in the sense that it gives rise to any res judicata and I think, having regard to the undetermined issue, the Coroner was not functus officio. 15    In R v White (1860) 121 ER 394, the question was whether the coroner who had held an inquest in which the jury returned a verdict of “died by the visitation of God” could hold a second inquest before a fresh jury to consider new evidence. The Chief Justice, Lord Cockburn, with whom the other members of the Court concurred, said that a coroner cannot hold a second inquest while the first is existing, pointing out that if the coroner were allowed to do so, inconvenience might arise from the inconsistent finding of the respective juries. His Lordship said that, in holding an inquest, “the coroner performs a judicial duty, and he is functus officio as soon as the verdict has been returned” (121 ER at 397). I consider that this conclusion applies to inquests held under the present legislation in this State. However, as I have pointed out, there was no finding as to the manner of Ms Bryne’s death and I cannot see, therefore, how the Coroner could be functus officio in that respect. I referred earlier in this judgment to the language used by the Coroner at the conclusion of the hearing on 11 February 1998. Whether the inquest was then concluded is to be determined by reference to the statutory functions the Coroner was exercising. To my mind, his use of the term “open finding” and his reference to the continuing investigations in which “the Coroner is still very interested”, establish that the inquest had not itself concluded, for all that the evidence then available had been adduced and no more hearings were immediately proposed. That this was the intention of the Coroner is made clear by his language (which I have quoted above) when re-opening the inquest. The statement on this occasion that “[the] inquest was concluded on 11 February” does not, when read in context, qualify this conclusion. At all events the issue is determined by substance, not merely form and the most material consideration is that a substantial outstanding issue required a finding that had not been made (cf Hoban v Davey (1972) 1 NSWLR 59 per Asprey JA at 68-9; NSW InsuranceMinisterial Corp v Edkins (1998) 45 NSWLR 8). It is of the essence of the notion of “functus officio” that the relevant function or office has been discharged or performed “the purpose for which its creation has been fulfilled” (Leung v Minister for Immigration (1997) 79 FCR 400 per Finkelstein J at 410; Jayasinghe v Minister for Immigration and Ethnic Affairs & anor, unreported, Federal Court of Australia, Goldberg J 25 June 1997; Winters v Cross (1976) 1 NSWLR 616 per Samuels AJ at 624). 16 Even if, under the common law, the Coroner was functus officio, his jurisdiction was continued or, at least, subject to resumption by virtue of s 48 of the Interpretation Act 1987. 17 Whether the Coroner was reopening or resuming the conduct of the inquest, s 13 still applied. Even if the inquest had been relevantly concluded by the open finding, providing the prerequisites of s 13(1) were satisfied, I consider that s 23 gave jurisdiction to conduct a fresh inquest into Ms Byrne’s death. In my view, the jurisdiction conferred by s 23 is not limited to the circumstances specified in ss 23(1)(a) and (b). Those events are mentioned simply to make it clear that the jurisdiction to hold a fresh inquest is unqualified, which reading interprets the word “notwithstanding” in the opening general words of s 23(1) in its primary sense of “without regard to or prevention by, not the less for” (see The Australian Concise Oxford Dictionary, Oxford University Press, (1987) or, more shortly, as “even where”. Accordingly, the Coroner was, at the time that he made the non-publication order holding an inquest, the hearing of which commenced on that day and for the safeguarding of which he made the order. I am satisfied that he convened a hearing on that day either reopening or resuming a hearing in the inquest previously commenced and not yet completed or in a fresh inquest no less because he intended to make the non-publication order so that the continuation of the inquest would be safeguarded. The fact, if it be the fact, that the Coroner convened the hearing solely to enable the order to be made under s 44(5) of the Act does not, to my mind, mean that he held or commenced to hold an inquest for that reason. I think that the conclusion that the Coroner was holding the inquest (whether it was continuing or was fresh under s 23 of the Act) for the purpose of further inquiring into the death of Ms Byrne is the proper one on the whole of the evidence and is to be distinguished from the reason that led him to convene the hearing on 22 October 1998 which, plainly enough, was instigated by the impending publication of material which the Coroner considered should, in the public interest, not be published. The Coroner referred in his reasons to the continuing nature of the inquiry and regarded the investigation as being carried out on his behalf, that is to say, for the purpose of the exercise by the Coroner’s Court of its jurisdiction and indicated that in due course further hearings would be convened. For the reasons that I have already given, the investigation was only partly conducted on the Coroner’s behalf, the police having an independent responsibility to investigate crimes and bring offenders to justice but I do not regard this as significant. It appears, I note, that the requirements of s 17 of the Act with regard to giving notice to interested persons and relatives was not complied with but, in terms, those requirements relate to the time and place for the commencement of the inquest although may be implicit that any further hearings must be the subject of appropriate notice, by necessary implication. Here, however, the nature of the hearing was not such as to permit intervention by any relevant person and, even if notice were required, the failure to give it did not, to my mind, adversely affect the propriety of the hearing in the circumstances of this case. However, I have not formed a concluded view as to this matter, this question not having been argued. 18 I conclude, therefore, that the Coroner was holding an inquest within the meaning of s 44(5) of the Act, it is not established that the holding of the inquest was for a purpose other than that for which the jurisdiction was given by the Act, and there was a sufficient basis for his exercising his discretion to make the non-publication order complained of in the public interest. 19 Accordingly, the summons must be dismissed with costs.

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Last Modified: 08/16/1999