Kontis & Anor v Coroners Court of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00252

KONSTANTIN KONTIS	First Plaintiff
- and -
VESNA KOS	Second Plaintiff
v
THE CORONERS COURT OF VICTORIA	Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATES OF HEARING:	23 and 24 June 2022
DATE OF JUDGMENT:	1 August 2022
CASE MAY BE CITED AS:	Kontis & Anor v Coroners Court of Victoria
MEDIUM NEUTRAL CITATION:	[2022] VSC 422

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CORONERS COURT – Judicial review – Inquest into 50 deaths at St Basil’s Home for the Aged – Two members of management summonsed to give evidence – Concurrent WorkSafe Victoria investigation – WorkSafe an ‘interested party’ at the inquest – Objections made to giving evidence on ‘reasonable grounds’ – Whether State Coroner satisfied that the ‘interests of justice’ required the witnesses to give evidence – Coroner’s powers and duties – Priest v West (2012) 40 VR 521 – ‘Alteration to the accusatorial system of justice’ – ‘Derivative use’ – ‘Imperfect protection’ of certificate – Coroners Act 2008 (Vic), Part 5, Division 2, especially s 57(4), and Part 6 – X7 v The Australian Crime Commission (2013) 428 CLR 92, Rich v Attorney General of New South Wales [2013] NSWCA 419, R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459, Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, Lucciano v R [2021] VSCA 12, Villan v State of Victoria [2021] VSC 354 and State of Victoria v Villan [2022] VSCA 106 – Submissions made by Court in respect of powers, practices and procedures – R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 – Alleged reasonable apprehension of bias arising from hearing by State Coroner of ‘family impact statements’ while ruling reserved – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Vakauta v Kelly (1989) 167 CLR 568 and Victoria Police Special Operations Group Operators 16, 34, 41 and 64 v Coroners Court of Victoria (2013) 42 VR 1 – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	ID Hill QC with C Currie	Galbally & O’Bryan
For the Defendant	C Mandy SC with A Martin	The Coroners Court of Victoria
For the Attorney-General for the State of Victoria (intervening)	L Brown with E Smith	Victorian Government Solicitor’s Office

HIS HONOUR:

A Introduction

In July and August 2020, 50 residents of St Basil’s Home for the Aged (‘St Basil’s’) died.[1] Forty five of those deaths occurred as a consequence of COVID-19. The plaintiffs were, respectively –

(a) the Chairman of the Board; and

(b) the Facility Manager and Director of Nursing.

[1]In the course of the hearing, it was confirmed that St Basil’s is some form of corporate or other entity: Transcript ‘T’ 5.

It was not in issue that, at the relevant time, the plaintiffs constituted the management of St Basil’s.[2]
[2]T129.

On 12 August 2020, the State Coroner issued notices to the plaintiffs under s 42 of Coroners Act 2008 (Vic) (‘the Act’) requiring that each prepare a statement.[3] Relying upon s 50 of the Act, they each declined.
[3]Court Book ‘CB’ 46-59.

On 21 October 2020, WorkSafe Victoria (‘WorkSafe’) issued a notice to St Basil’s under s 9 of the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’). Among other things, St Basil’s produced documents in answer to the notice. The plaintiffs, however, claimed a right to silence.

In broad terms, the plaintiffs have claimed a right to silence in respect of every approach made with a view to obtaining their account of relevant events.

The State Coroner held a directions hearing in the coronial inquest on 18 August 2021. By that time, various persons had sought and been granted leave to appear as an ‘interested party’, including –

(a) St Basil’s;

(b) the Department of Health, Victoria;

(c) the Commonwealth Department of Health;

(d) WorkSafe;[4] and

(e) certain family members of the deceased.

[4]In the course of the present hearing, counsel for the plaintiffs referred to the circumstances by which WorkSafe had been granted leave to appear as an ‘interested party’ and described them as ‘unusual’: T4-5 and T12-13. That said, neither in the course of the hearing of the inquest, nor in the present hearing, was it said that the involvement of WorkSafe was strictly improper or contrary to any provision of the Act: see, T29-30.

At the directions hearing, his Honour noted that the families were ‘looking for an explanation and an understanding of what happened and why’ and that he was ‘focused on that prevention opportunity that may exist’.[5]
[5]T5-6 (18 August 2021), CB66-67. See also, T49 (18 August 2021), CB110 and T51 (18 August 2021), CB112.

Senior counsel assisting made opening remarks that referred, broadly, to the fact that many residents had passed away in circumstances of distress to both staff members and the families. In that context, senior counsel recommended that the plaintiffs be summonsed to give evidence at the hearing of the inquest.[6] Senior counsel assisting stated –

We note that as a matter of public interest there is a pressing need for an in-depth forensic investigation of the St Basil’s outbreak as Australia’s most significant COVID-19 outbreak measured in terms of loss of life.
… despite the availability in 2021 of a vaccine for COVID-19 there is still much that can be learnt to protect elderly Australians.[7]

[6]T10-13 (18 August 2021), CB71-74.

[7]T14 (18 August 2021), CB75.

Senior counsel assisting emphasised that ‘the circumstances of the 50 deaths must be investigated’ and explained the time periods under investigation; in the course of which reference was made to various events, including notes taken at different times by the second plaintiff, communication from St Basil’s to the families by email and a discussion between the second plaintiff and a nurse.[8]
[8]T14-44 (18 August 2021), CB75-105.

His Honour indicated that hearing dates had been identified commencing in November 2021. His Honour stated –

I am certainly keen to have this matter listed and dealt with as soon as possible, and I think the reasons for that are obvious, given the current environment we’re in.[9]

[9]T45 (18 August 2021), CB106.

Various submissions and other observations of counsel and other legal representatives ensued. In that connection, a solicitor acting for several family members[10] urged his Honour to maintain the proposed hearing date and emphasised that –

… we are talking about real people that were left in the hands – they trusted a facility and were left to starve and to die alone.[11]

[10]I was informed that the solicitor’s firm was also acting for certain family members in a civil class action proceeding brought in this Court. Cf., CB157-245.

[11]T49 (18 August 2021), CB110.

In response, his Honour referred to the need to balance competing interests.[12]
[12]Ibid.

Towards the end of the hearing, senior counsel for WorkSafe stated –

Firstly, we also seek leave to appear as an interested party … . The court will be aware that WorkSafe has an investigation in relation to this matter. That investigation is ongoing. We anticipate it will be complete within the next eight weeks. We’ve listened carefully to counsel-assisting’s submissions this morning. If charges are brought at the conclusion of that process, we will then of course need to work out probably with the assistance of counsel-assisting, how best to avoid any prejudice to any criminal prosecution. …[13]

[13]T52 (18 August 2021), CB113.

In response, his Honour noted that it was not his intention to interfere with or cause any difficulty in relation to other matters, but that he was keen to pursue the inquest ‘in a timely way’.[14]
[14]Ibid.

On 27 August 2021, the plaintiffs applied for leave to appear as interested parties. A revised scope of inquiry for the inquest was settled on 8 October 2021.[15] By letters dated 3 November 2021, the plaintiffs were each served with a summons requiring that they give evidence at the inquest.[16]
[15]CB277-280. I note that WorkSafe had filed a submission concerning the scope of the inquiry, albeit that it amounted to a statement that WorkSafe did not wish to be heard at that time and would seek to be heard if charges were laid as a consequence of its investigation: CB246.
[16]CB269-272.

The hearing of the inquest commenced on 15 November 2021. There were 23 days of hearing in November and December 2021. Attendance at the hearing was affected by a practice direction that, among other things, referred to density quotients and COVID-19 safety protocols.[17] St Basil’s was represented by senior and junior counsel; as were, among others, the plaintiffs and WorkSafe.
[17]CB273-276.

On the first day of the hearing of the inquest, his Honour sought an update from senior counsel for WorkSafe concerning its investigation. Senior Counsel responded, relevantly, as follows –

The investigation is ongoing. The investigation is into suspected contraventions of the Occupational Health and Safety Act by St Basil’s Home for the Aged in Victoria. If it’s of assistance to the court, to let you know that we did receive some correspondence from the Victorian Department of Health late last week, which we answered over the weekend, but a copy has been provided to the court. We advised the Victorian Department of Health that WorkSafe is not presently investigating suspected contraventions by the department or any of its employees, but that of course, as with any ongoing investigation, that situation may change.[18]

[18]T3 (15 November 2021).

Senior counsel assisting then made some opening remarks, in the course of which he stated –

Finally, Your Honour, we note that the court’s investigators obtained 50 statements from family members of those whose deaths are connected with the outbreak at St Basil’s. Some are very detailed; all are highly moving. Not all wanted to give evidence in the hearings. Their statements tell eloquently of the anguish and distress suffered by these families. In many cases that distress is ongoing. Most remain angry and all want to understand how this could possibly have happened in Australia in 2020 and they want to ensure that it’s not repeated.
Twelve of the 50 have graciously agreed to give evidence in person in the hearings. As I’ve indicated, Ms Christine Goulding, whose mother resided at St Basil’s, will be the first witness we will call this morning.[19]

[19]T18-19 (15 November 2021).

Thereafter, senior counsel for St Basil’s raised the matter of ‘the WorkSafe presence’ at the hearing of the inquest. He stated that ‘it might be arguable that an inquiry of this kind ought be suspended whilst other investigations take place’, but went on to say that St Basil’s sought that the inquest continue nonetheless. In that context, senior counsel for St Basil’s raised WorkSafe’s ‘interest’ in the inquest and ‘the role they will be playing’. The purpose of that enquiry seems ultimately to have been to obtain confirmation that WorkSafe was not intending to cross-examine any witnesses (which was essentially obtained).[20] No related issue was raised by any other counsel, including by counsel for the plaintiffs.
[20]T20-21 (15 November 2021).

In the course of the hearing of the inquest from and including 15 November 2021, 55 witnesses were called. That seems to have occurred in accordance with a schedule that listed the various witnesses, including the plaintiffs, and identified dates at the end for ‘overflow witnesses/coronial impact statements’.[21] The 55 witnesses called in the period to which I have referred included several staff members from St Basil’s as well as certain family members of the deceased.
[21]CB284-288.

In the present context, counsel for the plaintiffs emphasised several events that took place during that general period, particularly –

(a) at some point, as senior counsel for the plaintiffs described it, Adjunct Professor Sutton, the Chief Health Officer of Victoria, gave evidence to the effect that he ‘blamed’ the first plaintiff for a number of deaths because he had not stood down the staff of St Basil’s when first directed;[22]
[22]T38.

(b) on 6 December 2021, the plaintiffs filed an ‘application’ articulating their objections to giving evidence at the inquest on the grounds that to do so may tend to prove that each had committed an offence against or arising under an Australian law;[23]
[23]CB292-305.

(c) on 8 December 2021, it became apparent that the representatives of various interested parties in the inquest had applied for and been granted leave to cross-examine the plaintiffs in respect of certain identified issues (assuming, of course, that either of the plaintiffs would ultimately be required to give evidence at the inquest);[24]
[24]CB289-291. The protocols relating to the hearing of the inquest required that such leave be sought and obtained in advance. No such application was made by the representatives for WorkSafe. Cf., CB11.

(d) on 9 December 2021, senior counsel assisting referred to an alteration in the witness schedule and the consequential effect upon the timing of the ‘application’ made by the plaintiffs, to which his Honour added the effect upon the timing of the hearing of the ‘family impact statements’ and stated, relevantly –

I probably should say in relation – on whichever day we do the family impact statements I’d anticipated that we would have interested parties not in court but online, because I would like the court space to be available to as many of the family members as possible. If any of the interested parties have another view about that I’m happy to hear from you, but by all means observe but it would be remote rather than in court, because I think it is important that the family members be given the opportunity to come to court and make their statements directly.[25]
[25]T2785-2786 (9 December 2021), CB308-309. No counsel raised any issue in respect of that proposed course of events. I should also note that the role of family liaison officers and the process by which the impact statements were produced has been deposed to by Abigail Smith, a solicitor employed by the Coroners Court: see, in particular, CB700-701. Among other things, the template for a coronial impact statement provided that it would not be evidence in the inquest and would not be shared with the interested parties without the consent of the maker.

(e) later on 9 December 2021, Helen Karikas, the daughter of Vicky Karavasilis (deceased), gave evidence in the course of which she implored his Honour not to excuse the plaintiffs from giving evidence. Senior counsel for the plaintiffs objected. His Honour initially allowed Ms Karikas to continue, but then terminated her evidence when she continued to expand upon the topic of calling the plaintiffs. His Honour noted the basis for senior counsel’s objection – namely, that the witness had not understood the legal principles to be taken into account by his Honour in the application made by the plaintiffs. His Honour said that the application would be dealt with ‘next week’;[26]

(f) on 13 December 2021, counsel assisting filed written submissions to the effect that his Honour should compel the plaintiffs to give evidence;[27] and

(g) various representatives for the families agreed with the position advanced by counsel assisting and urged that the plaintiffs be called.[28]

[26]T2917-2919 (9 December 2021), CB440-442. It is not evident that Ms Karikas was cross-examined by counsel for any interested party, including counsel for the plaintiffs.

[27]CB468-480.

[28]See, inter alia, CB481-484.

By 15 December 2021, the position was that the plaintiffs were the only summonsed witnesses remaining to be called and that day was essentially set aside in order that the ‘application’ may be heard.

The plaintiffs were each called briefly; in the course of which, among other things, they objected to giving evidence on the ground that it may tend to incriminate them and also objected to giving evidence willingly with the protection of a certificate given under s 57(3) of the Act.[29]
[29]T3411-3416 (15 December 2021), CB487-492.

Thereafter, his Honour heard argument in respect of the question – arising under s 57(4)(b) of the Act – whether ‘the interests of justice’ required that the plaintiffs give evidence. Following argument, his Honour reserved his decision, indicating that he would ‘endeavour to have a ruling before Christmas’.[30]
[30]T3502 (15 December 2021), CB578.

At that point, senior counsel for the plaintiffs raised ‘what is planned for tomorrow’ – namely, the proposed session involving the reading of family impact statements. His Honour confirmed that such a process ‘often happens’ in inquests at the conclusion of the evidence and is ‘not evidence’.[31] Senior Counsel then stated –

We understand that. We have not seen them [the statements], which is the normal case, and we are concerned that they go beyond the impact on the families and we understand why they would want to tell Your Honour the impact on the families, that’s a matter of great sadness and no doubt it’s had impacts on many people, but what concerns us, Your Honour, is what happened the other day [ie, in the evidence of Ms Karikas]; that one or more of those witnesses will stray into matters of an evidentiary nature in respect to … Ms Kos or Mr Kontis – or give uninformed – and I say that (indistinct words) – lay opinion evidence regarding whether they should give evidence or not.[32]

[31]Ibid. It may be noted that the template for a ‘coronial impact statement’ includes a series of frequently asked questions, the answer to one of which states, among other things, that ‘The Coronial Impact Statement does not form part of the coronial brief or evidentiary material and will not be shared with other parties unless you provide consent.’: CB707.

[32]T3503 (15 December 2021), CB579.

Senior counsel said that the concern was that his Honour would be ‘overborne by that sort of material, which you’d have to put out of your mind’.[33] His Honour referred to the process by which the statements were produced and stated –

And the instruction – it probably overstates – well, the information passed to the family members is matters that you’re concerned about are not to be included in those statements. And I give you the assurance that if there are matters that are raised like that, I will not hear it.
Now, that’s difficult, where I’ve got troubled family members, but I am confident that we have been through a process, to scrutinise that, and the risk – I can’t say it’s not [a] risk – the risk is very low. I can also assure you that I understand completely what my role is in determining this matter, and it’s on the material that’s been provided to me, not other matters.[34]

[33]T3503 (15 December 2021), CB579.

[34]T3503-3504 (15 December 2021), CB579-580.

The exchange between senior counsel and his Honour continued. In substance, his Honour’s assurances were accepted.[35]
[35]T3504-3506, CB580-582.

The following day, senior counsel for the plaintiffs did not appear; but the plaintiffs appeared via junior counsel. Both junior counsel for the plaintiffs and the members of senior and junior counsel for the other interested parties participated in the session remotely, as had earlier been indicated. Some family members also participated remotely.

In the courtroom, proceedings commenced with his Honour positioned at the centre of one of the two Bar tables; with other participants positioned according to a map presently in evidence.[36] That map is attached hereto as Annexure A. His Honour was seated at the Bar table closest to the body of the courtroom, to the right of senior counsel assisting and diagonally opposite a microphone at which the various family members presumably spoke. The solicitor for many of the family members was seated to the left of senior counsel assisting. The other counsel assisting, and the coroner’s solicitors, were seated at the second of the two Bar tables behind where his Honour was seated.
[36]CB714.

His Honour commenced by ‘saying a few things about what we’ve got in mind and why we’re doing this’. He referred to the importance of the families having ‘a voice in the process’ and also said that it was important to note that ‘this isn’t evidence in the case and I think everybody understands that’. He explained that it was ‘a very informal process’ and, because of that, introduced senior counsel assisting as ‘Peter’ and himself as ‘John’. He noted that ‘we often in coronial inquests allow families to do this’.[37]
[37]T3512-3514 (16 December 2021), CB602-604.

Thereafter, senior counsel assisting spoke to the process and then various ‘impact statements’ were read. Some were read by family members and others were read by senior counsel assisting. Thirty one statements were read in all. Some of the family members that made impact statements had earlier given sworn evidence, including Ms Helen Karikas to whom I have earlier referred.[38]
[38]The family members that had earlier given evidence in the inquest are identified in an affidavit affirmed by the solicitor for the plaintiffs: CB14-17. As to the ‘impact statement’ of Ms Karikas, it appears to have been read out by her brother, Jack Karikas: T3527-3529 (16 December 2021), CB617-619.

The emotion of particular family members when speaking is quite evident in the transcript. At times, family members spoke of their trauma, suffering, anger and loss, including, their anger and distress at the broadly asserted failures of St Basil’s and the State and Federal governments. To some extent, those passages have been highlighted for present purposes in an affidavit affirmed by the solicitor for the plaintiffs.[39]
[39]CB17-18.

Such statements were by no means made by every family member that spoke. However, such a statement was made by the first family member that spoke, and by several others that followed, including Mr Jack Karikas, who read the ‘impact statement’ on behalf of Ms Karikas. Among other things, it was there stated –

The devastation felt by my family since the passing of both my parents cannot be expressed in words. We are traumatised at the thought of what my mother endured, which no human should need to [endure]. She was helpless, she was alone, and she was let down by the system that was meant to protect her. My life personally has been turned upside down and not a moment goes by that I don’t think of them and miss them. The only solace I have is that they are once again together.
My children have been traumatised and they struggle to cope with the loss of their grandparents. It has affected their studies, their ability to work, they require counselling, and they miss them dearly every day. This coronial inquiry is being held to get answers for me, my family, and all the other families impacted. My questions are quite simply.
One, who will be held accountable? Two, will charges be made so that this living hell never gets repeated again? Three, why did my parents have to pay with their lives for a myriad of people’s mistakes, incompetence, and inability to follow common-sense processes and protocols? Four, when will the church apologise for what has happened?[40]

[40]T3528 (16 December 2021), CB618.

In the course of the process to which I have referred, Mr Spiros Vasilakis, the son of Ms Maria Vasilakis (deceased), spoke of ‘the unjust and untimely loss’ of his mother and his consequential struggle ‘to move forward’. He said that he accepted a retrenchment and had ‘not been able to hold down a job due to the depression’. He said that his mother had been ‘tragically let down by St Basil’s Aged Care Homes and paid with her life’.[41] Thereafter, he stated –

Though one can blame federal and state governments and the surge force, it is really like blaming the cart before the horse. The truth is, they weren’t there physically to run and manage the facility of St Basil’s Aged Care Homes. This responsibility was the manager of the facility, Vicky Kos and the Chairman Kon Kontis. The staff and residents were reliant on them to do their job properly and keep them all safe. Their lack of courage to accept and admit they were unprepared led to incompetence and negligence that resulted with the tragic death of my mother and 49 other lives. The life that was Maria Vasilakis and the other 49 lives lost deserved justice.[42]

[41]T3551 (16 December 2021), CB641.

[42]T3552 (16 December 2021), CB642.

Mr Vasilakis’ sister then read a separate statement in which, among other things, she spoke of living in ‘a world of sadness, bitterness, and resentment’ following her mother’s death.[43]
[43]T3553 (16 December 2021), CB643.

After that, the solicitor for some of the family members spoke of her clients’ ‘pursuit of justice’ and ‘class action’, but also asked that they stop blaming themselves.[44]
[44]T3554-3555 (16 December 2021), CB644-645.

Thereafter, his Honour concluded the morning session and there was an adjournment for lunch.[45]
[45]T3555-3556 (16 December 2021), CB645-646.

After the adjournment, his Honour dealt with ‘a couple of housekeeping issues’, which included explaining why it was that the representatives of the other interested parties were appearing remotely. His Honour reiterated that ‘this isn’t evidence that we’re hearing’. His Honour again described it as an ‘informal process’ and said ‘that’s Peter, I’m John, for the purposes of today’.[46]
[46]T3557-3559 (16 December 2021), CB647-649.

During the afternoon session, some family members appeared and read their statements remotely. The statements of others were read out by senior counsel assisting.

At the conclusion of the session, his Honour thanked those who had contributed and stated –

Hopefully you feel that you have had the opportunity to have a voice in this coronial inquest through being given that opportunity.[47]

[47]T3585 (16 December 2021), CB675.

In the course of the process to which I have referred, no exception was taken at any point by counsel for any interested party, including by counsel for the plaintiffs.

I should, perhaps, add that the evidence is – and it is not disputed – that the coronial impact statements were heard for the first time by his Honour at the hearing on 16 December 2021.[48]
[48]CB702.

His Honour’s written ruling in respect of the ‘application’ was emailed to the interested parties on 23 December 2021. In substance, his Honour determined that –

I am satisfied that it is in the interests of justice for both Ms Kos and Mr Kontis to be required to give evidence in this Inquest.[49]

[49]CB43 [93].

Also on 23 December 2021, the solicitor for the plaintiffs emailed the Coroner’s solicitors seeking copies of the coronial impact statements. That request was refused. The email from the Coroner’s solicitor stated, among other things, that the statements were not evidence in the inquiry.[50]
[50]CB14. Cf., CB598-599.

B The ruling

His Honour’s written ruling is single spaced and 23 pages in length.[51] It commences by referring to various aspects of the context to which I have earlier referred.
[51]CB21-43.

His Honour thereafter refers to s 57 of the Act and, among other things, states that[52] –
[52]CB22-23 [11]-[19].

(a) section 57 is in terms substantially similar to s 128 of the Evidence Act 2008 (Vic) (‘the Evidence Act’);

(b) sub-section 57(4) ‘authorises the abrogation of the long-standing common law privilege against self-incrimination’;

(c) that privilege has been described as ‘the first principle of our law’;

(d) section 57 had its origins in a report published by a Law Reform Committee of the Victorian Parliament that addressed both the purpose of such abrogation of the privilege and the encouragement anticipated to be given to any reluctant witness by a certificate preventing use of the evidence in any later proceeding;

(e) sub-section 57(1) permits a witness to object to testifying ‘on the ground that the evidence may tend to prove’ that he or she has committed an offence or is liable to civil penalty under Australian law;

(f) if the court is satisfied that ‘reasonable grounds’ exist for the objection, the court must inform the witness that he or she need not give evidence unless required by the court to do so, but that the court will give the witness a certificate if required to give evidence or if the evidence is given willingly;

(g) in argument, his Honour had accepted that the plaintiffs had reasonable grounds for their objections; and

(h) it followed that the issue was ‘whether I am satisfied that the “interests of justice” require Ms Kontis and Ms Kos to give evidence in the Inquest’.

His Honour thereafter turned to the details of the submissions advanced on behalf of the plaintiffs. In broad terms, those submissions were directed to –

(a) the asserted overlap in issues between the inquest and the criminal investigation being undertaken by WorkSafe – in connection with which, among other things, his Honour noted that senior counsel for the plaintiffs had submitted that any examination of the plaintiffs in the inquest would be ‘apt to be a “dress rehearsal” for a subsequent prosecution’;[53]
[53]CB24-29 [23]-[29].

(b) the ‘well-recognised and highly important consideration’ of the prejudice which it was submitted that the plaintiffs would face as a consequence of the ‘derivative use’ of any evidence that they might give in the inquest;[54]

(c) perhaps expanding upon the previous submission – the specific risk of prejudice of a kind described by Hayne and Bell JJ in X7 v Australian Crime Commission[55] (and other authorities);[56] and

(d) contentions that any evidence of the plaintiffs would be of ‘low probative value’ in the inquest, that the failure of the plaintiffs to give evidence would not leave a ‘lacuna’ in the evidence and that certain ‘principles’ said to have been ‘enunciated’ by Keogh J in Villan v State of Victoria[57] should be applied.[58]

[54]CB29-30 [30]-[33].

[55](2013) 248 CLR 92 (‘X7’).

[56]CB30-31, [34]-[37].

[57][2021] VSC 354 (‘Villan’).

[58]CB31-32 [38]-[41].

His Honour then turned to the various responding submissions of counsel assisting adopted, as his Honour noted, by counsel for the two groups of families represented at the inquest.[59]
[59]CB32-33 [42]-[45].

From that point, his Honour considered the interplay of the various arguments that bore upon the determination of the question in issue.

In that regard, his Honour[60] –
[60]CB33-35 [47]-[58].

(a) noted that neither of the plaintiffs had been charged;

(b) accepted that it was conceivable that the plaintiffs could be charged under one or more provisions of the OHS Act, although it was ‘not without some uncertainty’ – for reasons which his Honour explained;

(c) noted that such offences attract a penalty of a fine and that counsel for WorkSafe had referred to the extant investigation as being into ‘suspected contraventions of the Occupational Health and Safety Act by St Basil’s Homes for the Aged in Victoria’ [his Honour’s emphasis];

(d) considered any risk of the plaintiffs being charged to be ‘speculative’;

(e) considered the extent of any overlap between the issues in the inquest and any charge that might be laid to be very difficult to assess in the absence of a charge being filed – for reasons which his Honour explained; and

(f) considered that he must assess the ‘interests of justice’ against a background in which the plaintiffs ‘may face one or more charges of moderate seriousness and where the extent of any overlap of subject matter between those potential charges and my inquiry is unclear’.

It is evident both from aspects of the reasoning to which I have referred as well as the associated footnotes that his Honour considered the present circumstances to be materially different to those evaluated and considered by Keogh J in Villan.

His Honour then turned to consider X7 and the ‘limited protection’ provided by any certificate issued to the plaintiffs under s 57(5) of the Act. His Honour accepted that such a certificate would confer a ‘substantial measure of protection’, but that it ‘does not prevent any and all prejudice in the event that the [plaintiffs] face one or more charges in the future’. The ‘imperfect protection of the certificate’ was, as his Honour noted, relevant to the ‘evaluative assessment’ required by s 57(4) of the Act.[61]
[61]CB35-36 [59]-[66].

His Honour referred to the consideration by the New South Wales Court of Appeal of a similar provision in Rich v Attorney-General of New South Wales & Ors,[62] in which the phrase ‘interests of justice’ had been described as being of the ‘widest possible meaning’ determined by the particular context as well as the need for the coroner ultimately to be so ‘satisfied’.[63]
[62][2013] NSWCA 419 (‘Rich’).
[63]CB36-37 [67]-[70].

In that regard, his Honour turned to consider the scope and purpose of the provisions of the Act, together with aspects of the written submissions of counsel assisting that, among other things, had referred to the analysis of the provisions of the Act undertaken by the members of the Court of Appeal in Priest v West.[64] In that connection, his Honour noted – but left open – the question of jurisdictional error as a consequence of failing to make obvious inquiry about a critical fact. In substance, his Honour said that it was sufficient to observe that the effect of the statutory scheme, as construed in Priest, was that the Court should discover ‘all it can about the circumstances of the 50 deaths under investigation’.[65]
[64](2012) 40 VR 521 (‘Priest’).
[65]CB37-39 [71]-[74].

His Honour then addressed the contention that the evidence ‘that the applicants are in a position to give if they are called’ is of ‘low probative value’. In that regard, his Honour referred to the broad character of the evidence that had emerged concerning the plaintiffs in the course of the inquest to date as well as an acknowledgement made by their counsel in argument.[66]
[66]CB39-42 [75]-[90].

In that connection, his Honour considered the evidence of the plaintiffs to be ‘plainly directly relevant to, and highly probative of, my Inquest for several reasons’, which his Honour thereafter explained. In the course of that explanation, his Honour identified particular ‘gaps’ in the evidence which the evidence of the plaintiffs might be expected to address and accepted the submission of counsel assisting that ‘a significant lacuna exists’ in the evidence.

For those reasons, his Honour considered there to be a ‘real risk’ that the ‘inquisitorial and remedial functions’ of the inquest would be ‘frustrated’ if the evidence of the plaintiffs was not before the Court.[67]
[67]CB42-43 [91]-[92].

His Honour thereafter considered – and rejected – a submission apparently advanced by counsel for the plaintiffs to the effect that the finalisation of the inquest should be adjourned until a criminal investigation or proceeding is completed. In that regard, his Honour referred to the fact that the submission had been advanced in reply, his concern that the inquest could stand without finality for ‘several years’ and the provisions of the Act that refer to and thus acknowledge the potential for the process to distress family members. His Honour did not consider such an approach to be ‘practical or desirable’.[68]
[68]CB43 [93]-[96].

As I have earlier noted, in conclusion his Honour stated –

For the reasons explained above, I am satisfied that it is in the interests of justice for both Ms Kos and Mr Kontis to be required to give evidence in this Inquest.[69]
[69]CB43 [97].

C The present proceeding

The plaintiffs filed an originating motion on 31 January 2022. The Act does not provide for an appeal from his Honour’s ruling. The plaintiffs seek judicial review; which, in broad terms, depends upon demonstrating that his Honour made material legal error in the course of determining the question that arose. It is not an appeal on the merits.[70]
[70]Cf., Rich (n 62) [28]-[31].

The plaintiffs’ originating motion states four grounds of judicial review –

1. The Decision is vitiated by error of law on the face of the record, in that:
(a)the Defendant misconstrued, and otherwise misapplied, his statutory functions and the scope of his statutory powers with respect to the conduct of the Inquest: Decision at [72], [77], [85], [86], [87], [88], [91], and [92].
(b)in considering whether the interests of justice in the circumstances of this case require the Plaintiffs to be compelled to give evidence over their valid objections, the Defendant erred in distinguishing relevant authority, in particular the principles identified and applied in Villan v The State of Victoria [2021] VSC 354, and erred in failing to apply those relevant principles consistently with that decision: Decision [58] and [92].
(c)the Defendant erred in finding that a certificate issued under section 57(5) of the Coroners Act 2008 (Vic) is protective against derivative use of any evidence given by the Plaintiffs in the Inquest: Decision at [65].
(d)the Defendant erred in finding that the risk of the Plaintiffs being charged is ‘speculative’ and erred in relying upon that as a reason to require them to give evidence in the Inquest when the Defendant had already found, to the contrary (Decision at [18]), that the Plaintiffs’ objections to giving evidence were reasonable: Decision at [55] and [58].

2.In making the Decision the Defendant failed to take into account a relevant consideration, namely the alteration to the accusatorial system of justice effected by requiring the Plaintiffs to give evidence in the Inquest over their valid objections.
3.In making the Decision the Defendant took into account an irrelevant consideration, namely the nature of the penalty attached to any potential criminal charge, and in particular whether it involved imprisonment: Decision at [54], [55], and [58].
4.The Decision is affected by apprehended bias.[71]

[71]CB5-6.

In that connection, the plaintiffs claim an order in the nature of certiorari quashing the decision and, among other things, an order in the nature of prohibition restraining the State Coroner from requiring the plaintiffs to give evidence at the Inquest.

It will be evident from the above that the plaintiffs’ argument divides into two parts: on the one hand, grounds 1, 2 and 3, and on the other, ground 4.

The first part of the argument – in a sense, reflected in the argument by reference to ground 2 – concerned the ‘alteration to the accusatorial system of justice’ effected by his Honour’s determination. The plaintiffs contended that his Honour’s failure to grasp the ‘fundamental’ nature of that consideration was reflected in errors said to be evident in the individual paragraphs of his Honour’s reasons identified in grounds 1 and 3.

The manner in which the first part of the argument was argued means that it will be necessary to examine the scheme of the Act and aspects of recent authority in some detail.

The second part of the plaintiffs’ argument was directed to the contention – encapsulated in ground 4 – that, in the circumstances, his Honour’s conduct of the hearing on 16 December 2021, in the course of which the ‘family impact statements’ were heard, might have caused a fair minded and informed member of the public to entertain a reasonable apprehension that his Honour might not bring an impartial and unprejudiced mind to his ruling upon the ‘application’ heard and reserved the previous day.[72]
[72]Cf., Vakauta v Kelly (1989) 167 CLR 568; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee (2000) 205 CLR 337; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Victoria Police Special Operations Group Operators 16, 34, 41 and 64 v Coroners Court of Victoria (2013) 42 VR 1.

In this context, the defendant, the Coroners Court, sought to adopt the Hardiman position; albeit that it advanced submissions said to be directed to its powers, practices and procedures.[73]
[73]Cf., R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 36.

Counsel for plaintiffs were very critical of the position adopted by the defendant and accused it of overstepping the limits of such submissions. In response, counsel for the defendant confirmed that it did not wish to be heard in respect of any matters of substance. Counsel observed, correctly, that ‘the line’ can be difficult to ‘be balanced about’[74] and, with commendable brevity, submitted as follows –

If we have, in Your Honour’s view, after you have heard the submissions, strayed into an area where we are making submission about the merits then my learned friend, Mr Hill, is perfectly correct and you should disregard it.[75]

[74]T110.

[75]T111.

In my view, nothing presently turns on that debate. The material prepared by the defendant was of assistance; particularly the affidavit of the solicitor. It has not been necessary to have regard to any aspect of that material beyond the statutory provisions and the procedures of the Court.

In light of the position adopted by the defendant, the Attorney-General for the State of Victoria intervened in order to take up and address the substance of the arguments advanced on behalf of the plaintiffs.

D The scheme of the Act and relevant authority

It will be evident that while the question ultimately addressed by his Honour arose under s 57(4) of the Act, his Honour’s reasons discuss and refer to other aspects of the Act as well as to relevant authority. Those aspects featured in the course of argument and it is appropriate to address them in some detail.

The Preamble to the Act states –

The coronial system of Victoria plays an important role in Victorian society. That role involves the independent investigation of deaths and fires for the purpose of finding the causes of those deaths and fires and to contribute to the reduction of the number of preventable deaths and fires and the promotion of public health and safety and the administration of justice.
This role will be enhanced by creating a Coroners Court and setting out the role of the Coroners Court and the coronial system and the procedures for coronial investigations.

Part 1 of the Act addresses preliminaries. Section 1 identifies the Act’s purposes, including –

(a) to contribute to the reduction of the number of preventable deaths through the findings of the investigation of deaths and the making of recommendations by coroners; and

(b) to establish the Coroners Court as a ‘specialist inquisitorial court’.

Part 2 is titled ‘objectives’ and contains ss 6 to 9.

Section 6 states that the objectives in Part 2 are ‘intended to give guidance in the administration and interpretation of this Act’.

Section 7 states the intention of Parliament that a coroner ‘should liaise with other investigative authorities, official bodies or statutory officers’ to avoid unnecessary duplication of inquiries and investigations and to expedite the investigation of deaths and fires.

Section 8 states several factors to which regard should be had, ‘as far as possible in the circumstances’, when exercising a function under the Act. Those factors include –

(a) the distressing nature of the death of a ‘family member, friend or community member’;

(b) that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death; and

(c) the desirability of promoting public health and safety and the administration of justice.

Section 9 states that the ‘coronial system should operate in a fair and efficient manner’.

Part 3 of the Act concerns the reporting of deaths and Part 4 concerns the investigation of reportable deaths.

Division 4 of Part 4 is directed to the powers relating to investigation and includes s 42, pursuant to which, as I have earlier noted, the State Coroner sought that the plaintiffs each make a statement. A person must not fail to comply with such a request without a lawful excuse.

Division 6 of Part 4 is titled ‘general’ and includes s 49, which, among other things, provides that –

49. Notices and provision of information by principal registrar
(1)The principal registrar must notify the Director of Public Prosecutions if the coroner investigating the death or fire believes an indictable offence may have been committed in connection with the death or fire.

(2) …

Section 50 provides –

50. Protection against self-incrimination
(1)It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under section 32, 33, 34 or 42, if the giving of the information or the doing of that other thing would tend to incriminate the person.
(2)Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under section 32, 33, 34 or 42, if the production of the document would tend to incriminate the person.

Part 5 is titled ‘Inquests into deaths and fires’. Division 1 concerns the types of inquests. In that connection, s 52 provides, relevantly, as follows –

(3)The coroner is not required to hold an inquest in the circumstances set out in subsection (2) if —
(a) …
(b)a person has been charged with an indictable offence in respect of the death being investigated by the coroner; or

(c) …
(d) …

…
(4)The circumstances set out in subsections (3) and (3A) do not limit the powers of a coroner to hold, adjourn or recommence an inquest.

Division 2 concerns the ‘powers of coroners at inquests’ and contains sections 55 to 60.

Section 55 provides that a coroner may exercise a specified power if the coroner believes it is necessary for the purposes of an inquest. Such powers include –

(a) summoning a person to attend as a witness or to produce any document or other materials;

(b) ordering a witness to answer questions; and

(c) giving ‘any other directions or do anything else the coroner believes necessary’.

Section 56 concerns the granting of leave to persons to appear as an interested party – pursuant to which the State Coroner granted leave to various parties to appear at the present inquest, including the families, St Basil’s, the plaintiffs and WorkSafe.

Section 57 is the subject power, and provides as follows –

Privilege in respect of self-incrimination in other proceedings
(1)This section applies if a witness objects to giving evidence, or evidence on a particular matter, at an inquest on the ground that the evidence may tend to prove that the witness—
(a)has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)is liable to a civil penalty under an Australian law or a law of a foreign country.

(2)The coroner must determine whether or not there are reasonable grounds for the objection.
(3)If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness—
(a)that the witness need not give the evidence unless required by the coroner to do so under subsection (4); and

(b) that the coroner will give a certificate under this section if—
(i)the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and

(c) of the effect of such a certificate.
(4)The coroner may require the witness to give evidence if the coroner is satisfied that—
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(b) the interests of justice require that the witness give the evidence.
(5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the coroner must cause the witness to be given a certificate under this section in respect of the evidence.
(6)The coroner is also to cause a witness to be given a certificate under this section if—
(a) the objection has been overruled; and
(b)after the evidence has been given, the coroner finds that there were reasonable grounds for the objection.

(7)In any proceeding in a court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
(8)Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

As his Honour noted, s 128 of the Evidence Act is in similar terms. His Honour also noted that a provision of the same kind had also been considered by the New South Wales Court of Appeal in Rich.[76]
[76]Rich (n 62).

In that instance, a senior constable of police had shot and killed a man. The senior constable maintained that he acted in self-defence and he had not been charged. The State Coroner of New South Wales conducted an inquest, in the course of which the State Coroner formed the view that there was a reasonable prospect that a jury might convict the senior constable of an indictable offence. The Director of Public Prosecutions subsequently advised that the senior constable would not be prosecuted, as there was no reasonable prospect of obtaining a conviction.

The inquest resumed. The senior constable objected to giving evidence. It was accepted that he had a reasonable basis for holding the view that his evidence might tend to prove that he had committed an offence or that he was liable to a civil penalty. In that regard, it was accepted that the Commissioner had and might exercise disciplinary powers under the Police Act 1990 (NSW). It was also accepted that the immunity conferred upon the senior constable pursuant to s 61(7) of the Coroners Act 2009 (NSW) would not prevent the Commissioner from relying on any evidence given by the senior constable. Civil proceedings had also been commenced against the State in respect of the relevant events. The senior constable also pointed to the risk that the Director of Public Prosecutions might still use any such evidence to make a decision to prosecute him.

Nonetheless, pursuant to s 61(4) of that Act – which was in terms practically identical to s 57(4) of the Act – the State Coroner came to direct that the senior constable was required to give evidence notwithstanding his objection.

Leeming JA (with whom Bathurst CJ and Beazley P agreed) relevantly observed that –

(a) section 61(4)(b) empowered the State Coroner to require the senior constable to give evidence if satisfied that ‘the interests of justice require that the witness give the evidence’;[77]
[77]Rich (n 62) [16].

(b) such a precondition to the exercise of the power is both ‘open ended’ and undefined;[78]
[78]Ibid [17]-[18].

(c) such words – which are of the ‘widest possible reference’ – should be construed broadly;[79]
[79]Ibid [18].

(d) in that regard, s 61(4)(b) is ‘an instance of that class of broadly worded and undefined discretionary powers’ exercised upon the satisfaction of the coroner that the interests of justice so require;[80]
[80]Ibid [19].

(e) the assessment by the State Coroner of the likelihood of the risk of various ‘adverse consequences’ to the senior constable was ‘a matter for her’;[81]
[81]Ibid [33].

(f) the protection conferred by a certificate given under s 61(7) is ‘imperfect’, but ‘the premise of s 61 is that a person is forced to give evidence, contrary to a well-founded claim of privilege, and with the benefit of the inevitably imperfect protection of the certificate’;[82]
[82]Rich (n 62) [38].

(g) such residual prejudice includes that of the kind discussed by Hayne and Bell JJ in X7, in respect of which –

… s 61 requires that prejudice to be weighed in the balance of the interests of justice favouring the obtaining the evidence. The premise of the section is that a witness is exposed to a risk, in which case, s 61(4) obliges the Coroner to undertake an evaluative assessment of the interests of justice.[83]

(h) implicitly, the State Coroner had not erred in taking account of the fact that any ‘non-reviewable’ actions of the Commissioner as a consequence of any such evidence could or would amount to ‘relatively minor disciplinary consequences’.[84]

[83]Ibid [39].

[84]Ibid [40]-[42].

In the result, the Court of Appeal granted leave, but dismissed the appeal.

As to s 128 of the Evidence Act, as I have earlier noted, the plaintiffs emphasised the decision of Keogh J in Villan.[85] In that instance, a plaintiff in civil proceedings seeking common law damages alleged that he had been sexually assaulted in the mid-1980s in a high school operated by the defendant. He alleged that the abuse had been perpetrated by EFG. His Honour described the alleged abuse as of a ‘very serious nature’.[86] The defendant denied the abuse and indicated that it would call EFG. The contest centred upon whether the alleged events had occurred.
[85]Villan (n 57).
[86]Ibid [5].

The trial commenced before a judge and jury. The plaintiff gave evidence and it emerged that, although he had not yet complained to police, he had decided that he would do so. The jury was discharged after the fourth day on the basis that it was necessary for EFG to obtain advice. Having obtained advice, EFG refused to give evidence and opposed any application under s 128 of the Evidence Act that he be required to do so.

His Honour referred to s 128 of the Evidence Act and, citing Rich, identified it as conferring a ‘broadly worded and undefined discretionary power’.[87] His Honour explained that –

The effect of s 128 of the Evidence Act is to abrogate the common law privilege against self-incrimination. The object of s 128 is to strike a balance between upholding an objection by a witness to giving evidence which may tend to prove that they have committed an offence, and requiring the witness to give the evidence with the protection of a certificate under s 128(5).[88]

[Footnotes omitted].

[87]Villan (n 57) [13].

[88]Ibid [15].

In that connection, his Honour observed that a certificate under s 128(5) ‘does not provide the witness with complete protection’ and quoted from the reasons of Hayne and Bell JJ in X7.[89] His Honour thereafter stated –

Even if the possibility of prejudice to the witness is established, it may still be in the interests of justice to require that they give evidence. Whether or not that is so will depend on all the circumstances of the case. A relevant consideration is whether criminal proceedings against the witness are pending or likely.[90]

[Footnotes omitted].

[89]Ibid [16].

[90]Ibid [17].

His Honour then compared the circumstances with those considered by the Court of Appeal in Lucciano (a pseudonym) v R[91] (which case did not concern s 128, and to which I will return).
[91][2021] VSCA 12 (‘Lucciano’).

After recording the competing submissions of EFG, the plaintiff and defendant respectively, his Honour accepted that, in the circumstances, the defendant could not ‘fairly defend the case’ without the evidence of EFG[92] and that whether the abuse occurred would be ‘the most significant fact in issue’ in the civil proceeding and in ‘any potential prosecution of EFG’.[93] As to the risk of such a prosecution, his Honour accepted that the plaintiff would report the allegations to police and that it was likely that they would be investigated. In that connection, his Honour concluded that –

… there is a real prospect of EFG being charged with very serious offences and of being exposed to a significant period of imprisonment if found guilty.[94]

[92]Villan (n 57) [23].

[93]Ibid [24].

[94]Villan (n 57) [26].

His Honour thereafter referred to prejudice of the kind identified in X7 and the fact that, in the circumstances, the ‘accusatorial judicial process … would be fundamentally altered by requiring that he give evidence over his valid objection’.[95] His Honour also referred to the fact that in the event that EFG was not required to give evidence the defendant would apply for a stay of the civil proceeding.[96]
[95]Ibid [27].
[96]Ibid [28].

Ultimately, his Honour balanced the factors as follows –

The above factors do not all support the same conclusion. EFG is an essential witness to the defendant’s defence of the claim brought by the plaintiff. If he is not required to give evidence there will be an indeterminate stay of the proceeding, and the plaintiff will suffer irremediable prejudice as a result. However, the allegations made by the plaintiff against EFG will now be reported to, and are likely to be investigated by police. The critical fact in issue in this trial and in any potential criminal prosecution is identical. EFG’s evidence would be central to the determination of that issue in this proceeding. I conclude that the departure from the accusatorial system of criminal justice which would result means that it is not in the interests of justice to require that EFG give evidence at a trial in this proceeding until any criminal investigation and resulting prosecution of EFG has run its course.[97]

[97]Ibid [29].

In the circumstances, his Honour emphasised that ‘the integrity of the system of criminal justice must be preserved’[98] and, having balanced the considerations, determined that it was not in the interest of justice that EFG be required to give evidence in the civil proceeding.[99] It followed, ultimately, that the civil proceeding was stayed.
[98]Ibid [30].
[99]Ibid [31].

Returning to the provisions of the Act –

(a) section 58 confirms that the law relating to legal professional privilege is unaffected;

(b) section 59 concerns the issue of warrants; and

(c) section 60 concerns the assistance provided to a coroner at an inquest by a police officer or an Australian lawyer or the Director of Public Prosecutions or another person appointed by the coroner.

Division 3 concerns the ‘process at inquest’ and contains sections 61 to 66. In particular –

(a) a coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest ‘in any manner that the coroner reasonably thinks fit’;[100]

(b) the coroner will determine the witnesses to be called and ‘the relevant issues for the purposes of the inquest’;[101]

(c) section 65 provides –

[100]The Act s 62(1).

[101]The Act s 64.

Inquest to be conducted with little formality
A coroner must conduct an inquest—
(a)with as little formality and technicality as the interests of justice permit; and
(b)in a way that, as far as is practicable, makes the inquest comprehensible to interested parties and family members who are present.

(d) section 66 concerns the rights of interested parties, and also provides that the Attorney-General may appear or be represented at an inquest.

Part 6 concerns ‘findings, recommendations and referrals’ and contains sections 67 to 77.

Specifically, s 67 provides, relevantly –

Findings of coroner investigating a death
(1)       A coroner investigating a death must find, if possible—
(a)       the identity of the deceased; and
(b)       the cause of death; and
(c)unless subsection (2) applies, the circumstances in which the death occurred; and

(d) any other prescribed particulars.

…
(3)A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.

Further, s 69 provides:

Findings not to contain statement regarding guilt
(1)A coroner must not include in a finding or comment any statement that a person is, or may be, guilty of an offence.
(2)Subsection (1) does not apply to prevent the inclusion in a comment of a statement relating to a notification to the Director of Public Prosecutions under section 49.

Section 71 provides that –

Findings not required if inquest not held or discontinued
A coroner is not required to make any of the findings specified in section 67 in respect of a death being investigated by the coroner if—
(a)the coroner has decided not to hold an inquest, or to discontinue an inquest, because a person has been charged with an indictable offence in respect of the death; and
(b)based on the decision specified in paragraph (a), the coroner considers that the making of the findings would be inappropriate in the circumstances.

Section 72 of the Act concerns the powers of report and recommendation.[102] In particular, s 72(2) states that –

A coroner may make recommendations to any Minister, public statutory authority or entity on any matter connected with a death … which the Coroner has investigated, including recommendations relating to public health and safety or the administration of justice.

[102]As to the latter power, in respect of the relevant provisions of the Coroners Act 1985 (Vic), see: Harmsworth v The State Coroner [1989] VR 989, 995-996. Cf., R v Doogan; ex parte Lucas-Smith & Ors (2005) 193 FLR 239 (‘Doogan’).

Further provisions are directed to the publication of responses, findings and reports.

Part 7 of the Act concerns appeals to the Supreme Court of Victoria. As I have earlier noted, none of those provisions presently apply.

Among other things, Part 8 of the Act establishes the Coroners Court. Section 107 permits the State Coroner to issue practice directions, statements or notes in relation to investigations and hearings.

In this general connection, several of the provisions of the Act to which I have referred were discussed by the Court of Appeal in Priest.[103]
[103]Priest (n 64).

In that instance, a coroner had conducted an inquest into the death of a seven year old girl, Linda Stilwell, in 1968. The coroner had, however, excluded certain statements as irrelevant and also determined not to compel Derek Percy to give evidence. Mr Percy had been found not guilty of the murder of one of five other children on the ground of insanity and was a suspect in the murders of the other four. He had been seen in the vicinity of Beaconsfield Pde, St Kilda, from which Linda Stilwell had disappeared. The coroner did not invite Mr Percy to give evidence willingly; nor was Mr Percy informed that he would be given a certificate of immunity if he were to give evidence.

Tate JA delivered extensive reasons in which, for present purposes, Maxwell P and Harper JA relevantly agreed.

Tate JA referred to many of the provisions of the Act (including s 67)[104] and undertook a detailed consideration of the various statements and related matters. Her Honour considered that the coroner had been obliged to take the statements into account.
[104]Ibid [41] and [93]-[96].

In that regard, her Honour concluded that the statements had been included in the inquest brief in order to assist the coroner ‘to determine, if possible, the cause of Linda Stilwell’s death, and the circumstances of her death’ – which are the findings required to be made under s 67 of the Act. It followed that the statements had been ‘directed at precisely those statutory functions mandated by the Act’ and, therefore, that the coroner had erred.[105]
[105]Priest (n 64) [128]-[129].

The second ruling concerned the Coroner’s determination that Mr Percy should not be required to give evidence. In that regard, her Honour considered s 57 of the Act in some detail[106] and noted submissions made by counsel for Mr Percy to the following effect –

… that it was not in the interests of justice for the coroner to compel Percy to give evidence because there was a substantial chance that Percy would be prosecuted for murder after giving evidence. Furthermore, it was submitted, the reliability of any evidence he might give was compromised because he was suffering from a psychiatric condition at the time the alleged murders occurred. Moreover, it had been recognised that the public interest in compelling a witness to give evidence was reduced when the giving of evidence would incriminate the witness for murder.[107]

[106]Ibid [133]-[138].

[107]Ibid [140].

Her Honour thereafter explained the errors of the coroner, including in failing to explain the scope of an immunity provided by a certificate.[108]
[108]See, in particular, Priest (n 64) [147]-[151].

In connection with a further aspect of that ruling, her Honour returned to the statement of Professor Ogloff – which was one of the statements to which I have earlier referred – and considered the coroner to have failed to take account of that ‘salient fact’. In that regard, her Honour referred to the inquisitorial nature of the coroner’s function as well as the coroner’s functions and powers. Her Honour adopted the following as expressing the substance of the relevant policy of the Act –

The coroner’s primary duty has become the finding of the cause of death. In performing this function, the coroner’s role is in essence inquisitorial, in that the coroner must discover all he or she can about the circumstances surrounding the death.[109]

[109]Ibid [167]. See also, [171].

As I have earlier noted, Maxwell P and Harper JA relevantly agreed, and stated further as follows –

2The issues raised by this appeal focus attention of the coroner’s function under the Coroner’s Act 2008 (“the Act”) and on the scope of the inquiries which the coroner must undertake. The Preamble to the Act defines the role of the coronial system as (relevantly) “the independent investigation of deaths … for the purpose of finding the causes of those deaths”.
3As Tate JA points out, the Act declares – unequivocally – that the coroner’s investigative function is inquisitorial in nature. The coroner must therefore be an active investigator of the death in question. There being no parties to an inquest (although interested parties may be given leave to appear), the responsibility is the coroner’s alone.
4Moreover, the introductory words to s 67 are emphatic: when investigating a death, the coroner “must find, if possible” the identity of the deceased, the cause of death, and the circumstances in which the death occurred. The words “if possible” in s 67 make it obligatory, in our view, for the coroner investigating a death to pursue all reasonable lines of inquiry.
5Under s 62(1) of the Act, the coroner holding an inquest is expressly not bound by the rules of evidence. The subsection provides, moreover, that the coroner “may be informed … in any manner that the Coroner reasonably thinks fit”. As Tate JA notes, the trial judge took the view that these and related provisions gave coroners “considerable latitude as to the manner in which an inquest is conducted”. In his Honour’s view, this statutory flexibility and “wide discretion” told against the argument that the coroner in the present case was bound to have regard to the material in the disputed statements.
6With respect, we think these provisions point to the opposite conclusion. While undoubtably giving the coroner (appropriately) broad scope to shape and direct an investigation, these provisions emphasise Parliament’s intention that the coroner should not be constrained in carrying it out. It is precisely because the coroner must do everything possible to determine the cause and circumstances of the death that Parliament has removed all inhibition on the collection and consideration of material which may assist in that task. Parliament has, in particular, exempted the corner’s processes from the rules which limit the admissibility of evidence in court proceedings. Far from justifying a narrow view of the scope of an investigation, these provisions oblige the coroner to take an expansive or inclusive approach, in our view.[110]
[Footnotes omitted, but emphasis added].

[110]Priest (n 64) [2]–[6].

Their Honours thereafter observed that if it appeared that a person may have caused a death the subject of an inquest –

… the coroner must undertake such investigations as may lead to the identification of that person. Otherwise the required investigation into the cause of the death and the circumstances in which it occurred will be incomplete; and the obligation to find, if possible, that cause and those circumstances will not have been discharged.[111]
[111]Priest (n 64) [9].

E The privilege against self-incrimination

Another element central to many of the present arguments was the privilege against self-incrimination, which all parties acknowledged to be a common law right. The plaintiffs, however, emphasised the ‘fundamental’ nature of the privilege and the weight given to it in a sequence of recent authorities.

X7,[112] to which I have already referred, was foremost among the authorities to which attention was directed. In that instance, a person had been arrested and charged with indictable Commonwealth drug offences. While in custody, he had been served with a summons requiring him to be examined under the Australian Crime Commission Act 2002 (Cth) (‘the ACC Act’). He was asked questions about the subject matter of the offences, but then refused further to answer. The relevant provisions of the ACC Act were cast in general terms. The ACC Act had no equivalent of s 57 of the Act or, for that matter, s 128 of the Evidence Act.
[112]X7 (n 55).

Hayne and Bell JJ (with whom Kiefel J relevantly agreed) determined that the relevant provisions should not be construed as authorising the compulsory examination of a person charged with an indictable Commonwealth offence. Their Honours considered that such a construction would be radically to alter what would otherwise be a ‘wholly accusatorial process’.[113] In that regard, their Honours acknowledged that the accusatorial process of criminal justice can be altered by statute, but did not consider the provisions under consideration relevantly to have done so.[114]
[113]Ibid [71].
[114]Ibid [119] and [121]-[123].

Thereafter, in a passage emphasised by the present plaintiffs, their Honours stated –

Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.[115]

[115]X7 (n 55) [124].

The Attorney-General, however, referred to the subsequent High Court decision of Lee v New South Wales Crime Commission,[116] in which a majority of the Court had considered a section of the Criminal Assets Recovery Act 1990 (NSW) to authorise an order permitting the examination of a person charged with criminal offences and, in particular, R v Independent Broad-based Anti-Corruption Commissioner,[117] in which the appellants, who had not yet been charged with any offence, had sought to prevent the IBAC from holding examinations.
[116](2013) 251 CLR 196.
[117](2016) 256 CLR 459 (‘R v IBAC’).

In the latter instance, the appellants – who were police officers – had been summoned to give evidence and contended that they could not be required to assist in the proof of any offence that may come to be charged. They had already been suspended from duty on the basis that they were reasonably believed to have committed the assault under investigation. The question was whether, by express words or necessary intendment, the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘the IBAC Act’) had relevantly abrogated the privilege against self-incrimination. Importantly, s 144 of the IBAC Act provided relevantly as follows –

(1)A person is not excused from answering a question or giving information or from producing a document or other thing in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.
(2)Any answer, information, document or thing that might tend to incriminate the person or make the person liable to a penalty is not admissible in evidence against the person before any court or person acting judicially, except in proceedings for –
(a)       perjury or giving false information; or
(b)       an offence against this Act; or
…
(f)       a disciplinary process or action.

It may be noted that s 144(2) created what the High Court described as a ‘limited “use immunity”’.[118]
[118]R v IBAC (n 117) [26].

In the circumstances, the High Court observed that the ‘companion principle’ – that an accused person cannot be required to testify to the commission of the offence charged – had not been engaged because the appellants had not been charged.[119] The Court discussed the difficulty in extending the operation of the principle to a circumstance short of being charged.[120] The Court considered the intention of the legislature there to abrogate the privilege against self-incrimination to be clear. The appeal was dismissed.
[119]Ibid [48].
[120]Ibid [48]-[51].

For their part, the plaintiffs emphasised the subsequent High Court case of Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions,[121] as well as the Victorian cases of Lucciano and Villan.
[121](2018) 266 CLR 325 (‘Strickland’).

In Strickland, the appellants had declined to participate in an interview with the Australian Federal Police and subsequently been summonsed for examination by the Australian Crime Commission. The ACC examiner knew that the examinees were suspected of committing offences and allowed AFP officers to observe the examinations and subsequently directed that the examination material be provided to the AFP and the Commonwealth Director of Public Prosecutions. The appellants were subsequently charged and the examination material was used in compiling the briefs and obtaining evidence.

Kiefel CJ, Bell, Keane, Nettle and Edelman JJ determined that the prosecutions should be stayed. In particular, Kiefel CJ, Bell and Nettle JJ determined that the ACC’s powers were available for an ACC investigation; not for an unlawful extraneous purpose. Their Honours referred to X7 and, in that regard, to the fundamental alteration to the ‘accusatorial judicial process’ effected by requiring a person to give answers after having been charged.[122] Their Honours thereafter stated –

Similar considerations apply where, as here, a person is unlawfully subjected to a pre-charge compulsory examination conducted for the extraneous, unlawful purpose of assisting the AFP to compel the person to give answers to questions about offences of which he or she is suspected and in respect of which he or she has declined to be interviewed. Even if the answers given at such a compulsory examination are kept secret, the unlawful requirement to give answers in respect of an offence of which a person is suspected, or in relation to which he or she is a person of interest, fundamentally alters the accusatorial process for the investigation, prosecution and trial of that offence by unlawfully compelling the person to provide the prosecution with information.[123]

[122]Strickland (n 121) [76].

[123]Ibid [77].

Their Honours considered the concerns identified to ‘go to the heart of the accusatorial nature of the criminal justice system’[124] and thereafter addressed the intersection between the case under discussion and earlier decisions, including X7 and IBAC.[125] Ultimately, their Honours concluded that to allow the prosecutions to proceed would be to ‘bring the administration of justice into disrepute’.[126]
[124]Ibid [79].
[125]Ibid [95]-[98].
[126]Ibid [107].

In Lucciano,[127] the issue was prejudice arising from an earlier civil proceeding in which the subject matter was historical sexual offending. The civil proceeding proceeded to judgment against the applicant. The applicant did not participate in the civil trial knowing or suspecting that a criminal trial would follow.[128]
[127]Lucciano (n 91).
[128]Indeed, it seems that during the civil trial counsel for the complainant made statements which caused counsel for the applicant to understand that the complainant had not made a statement to police: see, Lucciano (n 91) [15].

Nonetheless, prior to the civil trial, the complainant had made a statement to police and the informant subsequently used the civil trial transcript as part of the criminal investigation. Shortly after judgment against the applicant was delivered in the civil proceeding, he was charged with criminal offences. The criminal matter proceeded to trial and the applicant was convicted. In the Court of Appeal, the issue was whether the criminal trial had been so unfair that there had been a substantial miscarriage of justice.

Among other things, McLeish, Niall and TM Forrest, JJA referred to the analogy with the effect of compulsory pre-trial examination discussed by Hayne and Bell JJ in X7,[129] but also noted the different context in which the present issue arose. Their Honours referred to a considerable number of aspects in which the applicant had suffered actual prejudice. In that connection, their Honours stated –

A civil trial had been fought on multiple factual issues which were litigated again in a criminal trial, and the prosecution was afforded real advantages from that profound departure from the accusatorial system of criminal justice.[130]

[129]Lucciano (n 91) [27].

[130]Ibid [36].

Their Honours considered the presumptive and actual prejudice to have been such that it was not possible for the applicant to have received a fair trial.[131]
[131]Ibid [47].

The plaintiffs placed considerable reliance upon the decision of Keogh J in Villan,[132] which I have earlier discussed in some detail. In argument, the plaintiffs also referred to a subsequent application for leave to appeal in Villan that was heard and determined after delivery of the ruling of the State Coroner and prior to the hearing of the present proceeding.[133]
[132]Villan (n 57).
[133]State of Victoria v Villan [2022] VSCA 106 (‘State of Victoria v Villan’).

In respect of that latter question, further elements of evidence were relevant, such as what senior counsel for WorkSafe had said to his Honour concerning the subject matter and state of its investigation. Those matters informed his Honour’s determination that the prospect of the plaintiffs actually being prosecuted for any particular offence could not be more than ‘speculative’.

So understood, there was no inconsistency. It follows that ground 1(d) must be rejected.

Ground 3 is directed to his Honour having taken into account that any potential criminal charge faced by the plaintiffs would not seem to attract any penalty of imprisonment.[204] That was said to have amounted to taking account of an irrelevant consideration. The point was said to be both ‘important’ and ‘devoid of judicial authority’.[205]
[204]CB34-35 [53], [55] and [58].
[205]T35.

In that connection, counsel for the plaintiffs identified the potential charges faced as indictable offences triable before a judge and jury and pointed to the potential social and other consequences of any conviction and thereafter submitted that –

There is no authority cited by the Coroner to support the implication or proposition that the plaintiffs’ fundamental common law right to avoid conviction for a crime and/or the adverse impact on the accusatorial system are of lesser significance because they are not exposed to imprisonment.[206]

[206]T38-39.

That point is, however, strictly somewhat different to the point taken in ground 3. In any event, I do not accept that his Honour’s reasons include any implication that the plaintiffs’ rights to claim a privilege against self-incrimination are the lesser because of the nature of the penalty that they might face in respect of any charge that might later be commenced. Among other things, his Honour did not say that.

Nor do I accept that the nature of the penalty that might be faced was irrelevant to that which his Honour was required to determine – namely, the ‘interests of justice’ in all of the circumstances. Those circumstances must include any potential charges faced as well as their penalty. Indeed, the nature of the penalty that could be faced was plainly considered to be a relevant factor by Keogh J in Villan.[207]
[207]Villan (n 57) [26].

Further, even if the potential social consequences of a conviction for an indictable offence may be accepted, it is undeniable that there is a qualitative difference between an offence punishable by fine and one to which a period of imprisonment may attach.

In addition, as I have earlier observed, several provisions of the Act identify whether the person concerned has been charged with an indictable offence as bearing upon whether, for example, an inquest can take place. Those provisions therefore frame the circumstances in which the issue posed by s 57(4) can ever come to be considered.

In that sense, the provisions of the Act tend to suggest that the nature of any criminal charge that might be or come to be faced (and, implicitly, the penalty attached) is likely to be relevant to any determination that a person who objects to giving evidence should be required to do so in ‘the interests of justice’.

Finally, while the ‘social and other consequences’ of a criminal conviction are not specifically identified in his Honour’s reasons, it is not clear that any such point was ever taken below.

Further, in the course of the present argument such consequences were identified as arising in relation to essentially every conviction (certainly any conviction for an indictable offence).[208]
[208]T36.

It follows that it is unlikely that his Honour overlooked them, especially in circumstances where, as was noted in argument below, he had previously been the solicitor for the Office of Public Prosecutions and was observed to be ‘very familiar with the Occupational Health and Safety Act’.[209]
[209]T3429 (15 December 2021), CB505. The present point may well be of potential significance in respect of other aspects of his Honour’s reasoning, including the determination that the prospect of the plaintiffs being charged was, on the evidence, no more than ‘speculative’.

In that regard, the fact that such a consideration – of a wholly peripheral and generally to be assumed kind – is not expressly mentioned in his Honour’s reasons does not mean that his Honour failed to give it consideration, ‘at least in a general way’.[210]
[210]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 [62].

It follows that ground 3 must be rejected.

G Ground 4: reasonable apprehension of bias

Ground 4 is directed to the contention that, in all the circumstances, his Honour’s conduct in the course of the session on 16 December 2021 in which the family impact statements were received could reasonably have given rise to an apprehension of bias in the mind of an informed and fair-minded lay observer.

Counsel for the plaintiffs contended that his Honour had engaged in ‘unusual judicial conduct’, in that –

(a) there was ‘no urgency to conduct that type of hearing at that time’ bearing in mind the significance of the ruling on which his Honour had reserved the previous day;[211]
[211]T40.

(b) on the day concerned, a ‘personal familiarity’ and ‘alliance’ was created with those that ‘were allowed to be there who, through their counsel, had opposed the plaintiffs’ application the very day before’;[212]

(c) by contrast, the representatives for the other interested parties ‘weren’t being offered parity of position at the Bar table or even the opportunity to be present’;[213] and

(d) in the course of the session, his Honour made ‘no comment or criticism’ of those who made statements ‘when they digressed into criticism in relation to St Basil’s and the plaintiffs’.[214]

[212]Ibid. The details of the alleged ‘personal familiarity’ and ‘alliance’ were further particularised in the plaintiffs’ written submissions: see, CB695-696.

[213]T42.

[214]T43. In written argument, a related point was made that the impact statements had not been distributed to the interested parties in advance. It was said that the statements had been requested, but refused: CB695. It is apparent that the request referred to in the written submissions was not, in fact, made until 23 December 2021: CB598.

The substance of the proposition was ultimately summarised as follows –

All of which we would say would give rise to a reasonable apprehension that the Coroner was showing an alliance with, deference to and preferential bias in court towards the interests of family members against the plaintiffs to a degree that would affect his ability to fairly determine the plaintiffs’ application to be excused from giving evidence. Which, coincidentally, he must have, at the same time, temporally, have been considering.[215]

[215]T43.

As to the point at which the claimed ‘reasonable apprehension’ arose, in written reply submissions the plaintiffs contended that –

The apprehension of bias may be seen to have accrued cumulatively and its full impact and relevance [was] only really apparent upon the handing down of the Defendant’s decision.[216]

[216]CB760.

In oral argument, that submission was repackaged in more palatable terms. It was submitted that whilst ‘perhaps in hindsight’ a bias application could have been made on 16 December 2021, ‘any waiver must be fully informed and clear’ and that ‘the tipping point may be difficult or impossible to identify’.[217] It was also submitted that –

We had, the day before, expressed disquiet at what was to occur, although we did not know at that time that this level of informality was to be adopted.
We raised the very concern that one or more of the persons present would stray into matters of an evidentiary nature in respect to the plaintiffs or give an opinion on whether they should give evidence or not, particularly when, as we said to the Coroner, Your Honour has an important legal ruling and we don’t want Your Honour to be overborne by that sort of material which you have to put out of your mind. So we didn’t sit entirely silent or waive or acquiesce regarding this point.[218]

[217]T41.

[218]T41.

There was no dispute concerning the applicable principle. In Ebner v Official Trustee in Bankruptcy, Gleeson CJ, McHugh, Gummow and Hayne JJ stated –

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … the governing principle is that, subject to qualifications relating to waiver … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[219]

[Footnotes omitted].

[219](2000) 205 CLR 337 [6]. See also, Johnson v Johnson (2000) 201 CLR 488 [11].

In that connection –

(a) the test is one of possibility, not probability;

(b) the fair-minded lay observer is a hypothetical figure who is taken to have a broad knowledge of the material objective facts in the context of the whole of the judge’s conduct in the particular trial or inquiry; and

(c) in relation to the Coroners Court, regard must be had to its inquisitorial nature and statutory departures from the ‘judicial paradigm’.[220]

[220]See, generally, Victoria Police Special Operations Group (n 201) [38]-[47].

To the above, I should add –

(a) the question is largely factual and, indeed, a matter of impression;[221] and

(b) a conclusion of apprehended bias should not lightly be reached.[222]

[221]Isbester v Knox City Council (2015) 255 CLR 135 [20].

[222]CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 [56]. Put another way, such a conclusion should be ‘firmly established’: Doogan (n 102) [78].

In the present context, the plaintiffs’ written submissions included the contention that the hearing on 16 December 2021 ‘or the manner that it was conducted’ was not ‘justified by or served any purpose, object of function authorised by the Act, in particular ss 1, 8 and 67’.[223]
[223]CB697.

That submission was not made below and was not further explained or developed in oral address in the present proceeding.

It is not clear what should be said to flow from such a submission. If the hearing on 16 December 2021 was not ‘justified’, it does not follow that any aspect of his Honour’s ruling would stand to be impugned. In order for the plaintiffs to obtain relief in respect of that ruling, it would need to be shown that it is relevantly erroneous or could have been affected by a reasonable apprehension of bias – which is the present contention. It follows that the submission to which I have referred should be put to one side.

I have earlier outlined the sequence of relevant events and will endeavour not to repeat the detail unnecessarily here.

The substance of the position is that on 9 December 2021, some days prior to the hearing of the ‘application’ relating to the evidence of the plaintiffs, his Honour identified that the session directed to family impact statements would follow the hearing of the ‘application’ and that it was proposed that the other interested parties participate online, for reasons which his Honour outlined.

In the tone of that exchange, and expressly in the later events to which I have earlier referred, it was evident (and the fact is) that in a coronial inquest a session directed to the airing of family impact statements is not remotely unusual. In any event, his Honour invited submissions in respect of the proposed course, and none were made.

That underlines a broader point applying to the whole of the sequence of events concerned: it is evident that at all points his Honour remained open to and dealt patiently and responsively with any submissions or objections that were raised, including the discrete objection raised on 9 December 2021 in respect of the evidence of Ms Karikas.

At the end of the day on 15 December 2021, and after argument had been heard in connection with the ‘application’ and his Honour’s decision reserved, counsel for the plaintiffs addressed the proposed session the next day directed to family impact statements.[224] That address was not in the character of an objection and was quite confined in its scope. In that regard –
[224]See, generally, transcript of 15 December 2021: T3502-3505 (15 December 2021), CB578-581.

(a) counsel did not suggest that, for any reason, the proposed session should be delayed – which is a submission now advanced;

(b) nor did counsel take any issue with the manner in which the session was proposed to proceed, namely with other interested parties participating online – which is a point now sought to be given some sinister or other significance;

(c) counsel did refer to the fact that the family impact statements had not been seen, and described it as ‘the normal case’[225] – which is also now sought to be identified as an element of ‘unusual judicial conduct’;
[225]Which reference was consistent with the relevant frequently asked question in connection with ‘coronial impact statements’, to which I have earlier referred: see, CB707.

(d) counsel did express a concern that ‘one or more of those witnesses will stray into matters of an evidentiary nature’ in respect of the plaintiffs;

(e) counsel also expressed a concern that such ‘witnesses’ would ‘give uninformed … lay opinion evidence regarding whether they should give evidence or not’ (which had been the substance of the earlier objection in respect of the evidence of Ms Karikas); and

(f) counsel expressed a concern that his Honour would be ‘overborne by that sort of material, which you’d have to put out of your mind’.

In the present context, as I have noted, counsel for the plaintiffs described that exchange as amounting to an expression of ‘disquiet’.[226]
[226]T41.

I do not accept that the exchange concerned amounted to any objection to the proposed conduct of the session the following day, or to the manner in which it was proposed to be undertaken. Rather, it amounted to an endeavour to obtain both confirmation and reassurance that any events anticipated to occur –

(a) would be controlled as much as possible (recognising, as was evident in the substance of his Honour’s response, that there are limits to what can be done in the course of a session in which ‘troubled family members’ are making statements rather than responding to the questions of counsel);[227] and

(b) have no wider impact, particularly upon his Honour’s consideration of the issues relating to the ‘application’.

[227]T3503-3504 (15 December 2021), CB579-580.

His Honour reassured counsel on both fronts. More than once, his Honour explained that the material was not being received as evidence in the inquest and would not be relevant to his determination of the ‘application’. Those reassurances were accepted ‘without question’.

At no point in the exchange concerned was there the slightest suggestion that anything that might be anticipated to occur the next day could give rise to a reasonable apprehension of bias.

As I have earlier noted, the plaintiffs’ present objections in connection with the events of the following day relate to asserted elements of ‘personal familiarity’, an appearance of ‘alliance’ and the fact that, in broad terms, some family members raised the responsibilities of those apparently involved in the subject events – including the plaintiffs, St Basil’s and/or the State and Federal governments.

In that connection –

(a) the plaintiffs were represented by counsel during the session, albeit online – which had been proposed much earlier, and accepted without demur;

(b) the seating arrangements and ‘informal’ nature of the arrangements – presently described in argument as ‘unexpected’[228] – must have been evident to all counsel at the outset, including counsel for the plaintiffs;
[228]CB696.

(c) in that regard, his Honour explained the ‘very informal’ nature of the session, the reasons for it and that what was to be said would not be received as evidence in the inquest;[229]
[229]T3513 (16 December 2021), CB603.

(d) at various points, as I have earlier noted, family members did express anger and distress at the broadly asserted failures and responsibility of St Basil’s and the State and Federal governments;

(e) one of those family members, Mr Vasilakis, expressed distress of that kind in respect of the plaintiffs (although he also mentioned the State and Federal governments); [230] and

(f) at no point did any family member implore that the plaintiffs be called to give evidence in the inquest – which had been what moved counsel for the plaintiffs to object to the earlier evidence of Ms Karikas.

[230]T3552 (16 December 2021), CB642.

In the present context, counsel for the plaintiff sought to criticise his Honour for having failed to control the statements made by certain family members, particularly Mr Vasilakis. In my view, there is nothing in the criticism. In that regard –

(a) his Honour did not have prior notice of precisely what would be said;

(b) it was not said to his Honour that he should personally have prior notice of precisely what would be said;

(c) his Honour could not reasonably be said to have actively encouraged any expressions of distress concerning St Basil’s, the governments or the one such statement directed to the plaintiffs;

(d) his Honour had previously intimated – quite correctly – that in an emotional setting in which the usual elements of question and answer are not present, there are very real practical limits upon the extent to which it might be possible for him to intervene without exacerbating the problem about which a party in the position of the plaintiffs might be concerned (or, for that matter, St Basil’s and the State and Federal government entities – all of whom were represented); and

(e) such risk was, in practical terms, definitively met by his Honour’s assurances that the family impact statements would not be received as evidence in the inquest and would not bear upon his Honour’s determination of the application – which were earlier expressly accepted and, on the day in question, not questioned.

In respect of the latter point, the plaintiffs submitted that the fact that such statements were said not to be evidence ‘does not diminish their prejudicial impact’.[231] However, in my view –
[231]CB756.

(a) there was only one such statement that directly concerned the plaintiffs – that of Mr Vasilakis;

(b) the other statements concerned St Basil’s and the governments;

(c) all such parties were relevantly represented, and no-one objected; and

(d) what had been said on the few occasions that that occurred was in relevant respects no different in character to what must have been either said or intimated by one or more witnesses in evidence in the earlier part of the inquest – as was particularly highlighted, in the present context, in respect of the evidence of the Chief Health Officer – and in respect of which I was not told that any objection was taken.[232]

[232]I do not mean to suggest that such an objection would properly have been taken. I say nothing about whether such an objection would have been proper or not.

In the circumstances, I do not accept that any of the statements to which I was referred[233] could have had any real ‘prejudicial impact’; especially as no party evidently objected to any of it, and his Honour had said that such statements would not be considered among the evidence in the inquest or bear upon his Honour’s determination of the ‘application’.
[233]CB17-18.

Further, in the context to which I have referred, I do not accept that any fair-minded and reasonable person would conclude that there could have been any real possibility that his Honour would have been ‘overborne’ by any such material. His Honour had stated that that would not be so. More particularly, however, a judicial officer will be expected to be capable of separating the relevant from the irrelevant in coming to a decision.[234]
[234]BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 328 [62]. Cf., British American Tobacco Australia Services v Laurie (2011) 242 CLR 283 [140].

In the circumstances, in my view, nothing stands to suggest that his Honour could reasonably have been perceived to have been at risk of prejudging the ‘application’. There is nothing about what occurred – the reasons for which were both explained by his Honour and evidently accepted – that suggests that his Honour’s statements that the ‘application’ would be determined appropriately and that the family impact statements would not stand as evidence in the inquest should not be taken at face value.

That being the case, I cannot accept that an informed and reasonable lay person could have formed the view suggested. The applicable principle does not involve imputing to such a person a propensity to draw the most sinister of implications,[235] especially when the judicial officer concerned has explained precisely what is happening, and why, and what significance it might be expected to have in respect of the determinative part of the inquest and thus the ‘application’ – namely, none.
[235]Cf., Doogan (n 102) [78].

In any event, as I have noted, at no point in the session to which I have referred was any objection or other relevant issue raised by any counsel, including by counsel for the plaintiffs.

In light of the overall circumstances, including what had occurred the previous evening, counsel for the plaintiffs (and, for that matter, counsel for St Basil’s and the respective government entities) must have been very keenly attuned to any perceptions of prejudice to their clients. The fact that no concern was raised during the session on 16 December 2021 is telling: it strongly suggests that what occurred in the course of that session was not considered to give rise to any significant perception of prejudice in the minds of those who might be thought to be most keenly attuned to the risk of it; let alone any reasonable apprehension of bias in the mind of an intelligent fair-minded lay observer.

I do not accept that it was a situation in which counsel for the plaintiffs were placed in any difficult or ‘invidious’[236] position or lacked any opportunity to raise a point if it was thought appropriate to do so. I have already referred to his Honour’s open and receptive posture throughout.
[236]CB760.

Just as importantly, all elements of the plaintiffs’ present complaints must have been evident – at the very latest – prior to the adjournment for lunch on 16 December 2021. That adjournment gave counsel plenty of opportunity to consider the position and take some form of objection if instructed to do so.

Indeed, at the recommencement of the session after lunch, his Honour addressed a sequence of ‘housekeeping issues’ that included further explanation as to why it was that the other interested parties were appearing remotely as well as a reiteration of the fact that the family impact statements were not being received as evidence in the inquest.[237]
[237]T3557-3559 (16 December 2021), CB647-649.

That occasion provided plenty of opportunity for any objection or any other issue to have been raised in order that any identified concern of the plaintiffs might be addressed by his Honour, but nothing was done.

In that context, albeit that I am not persuaded that anything that occurred in the course of the session on 16 December 2021 could reasonably be viewed as giving rise to a reasonable apprehension of bias in the mind of a fair-minded lay observer,[238] I consider that even if any such apprehension could be considered to have arisen it must be taken to have been waived.
[238]Let alone that such a perception was ‘firmly established’: cf., Doogan (n 102) [78].

In my view, the plaintiffs’ written submission to the effect that the allegedly ‘full impact and relevance’ of what had occurred on 16 December 2021 was ‘only really apparent’ upon the handing down of his Honour’s ruling on 21 December 2021 is revealing. In the circumstances to which I have referred, every element of the plaintiffs’ present complaints seems to me to be strongly influenced by the result of the subsequent ruling, and it is not evident that any of it was truly thought to be remotely pernicious or worthy of objection at the time at which it actually occurred. Having read the transcript, it seems unimaginable that if some issue had been raised it would not have been addressed appropriately.

In my view, the present circumstances are broadly to be embraced by the following observations made by Brennan, Deane and Gaudron JJ in Vakauta v Kelly –

… a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that … there has been a failure to observe the requirement of an appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when there were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment …[239]

[239](1989) 167 CLR 568, 572. See also, per Dawson J at 577, and Victoria Police Special Operations Group (n 201) [47].

For these reasons, ground 4 must be rejected.

H Conclusion

Each of the grounds relied upon by the plaintiffs must be rejected. The proceeding will be dismissed. I will hear counsel concerning the form of final orders, including in respect of any question of costs.

ANNEXURE A

[2022] VSC 422

1 August 2022