Kontis v Coroners Court of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0078

KONSTANTIN KONTIS	First Applicant
VESNA KOS	Second Applicant
v
CORONERS COURT OF VICTORIA	First Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Second Respondent

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JUDGES:	McLEISH and WALKER JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2022
DATE OF JUDGMENT:	12 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 274
JUDGMENT APPEALED FROM:	[2022] VSC 422 (O’Meara J)

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ADMINISTRATIVE LAW – Judicial Review – Appeal – Inquest into COVID-19 deaths at aged care facility – Applicants asserted privilege against self-incrimination – State Coroner ruled that ‘interests of justice’ required applicants to give evidence – Whether State Coroner misunderstood his obligation to investigate as absolute – Whether State Coroner misconstrued ss 57(4)(b) and 67(1) of Coroners Act 2008 – Whether State Coroner attributed undue significance to comments of this Court in Priest v West (2012) 40 VR 521 – No error shown – State Coroner weighed obligation to investigate in broader evaluative assessment of interests of justice – Whether State Coroner erred by confining ‘interests of justice’ to those served by inquest process – Whether State Coroner erred by addressing whether compelling evidence in interests of justice rather than required by interests of justice – Asserted errors not apparent on fair reading of ruling – Appeal dismissed.

Coroners Act 2008, ss 57, 67.

Priest v West (2012) 40 VR 521, explained; X7 v Australian Crime Commission (2013) 248 CLR 92, Rich v Attorney General (NSW) [2013] NSWCA 419, referred to.

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Counsel
Applicants:		Mr OP Holdenson KC, with Ms CE Currie
First Respondent:		Mr C Mandy SC, with Ms A Martin
Second Respondent:		Mr L Brown, with Ms E Smith
Solicitors
Applicants:	Galbally & O’Bryan
First Respondent:	The Coroners Court of Victoria
Second Respondent:	Victorian Government Solicitor

MCLEISH JA
WALKER JA
J FORREST AJA:

The question in this application for leave to appeal is whether the State Coroner wrongly construed and applied relevant provisions of the Coroners Act 2008 (‘the Act’) in requiring the applicants to give evidence at an inquest.
In our opinion, he did not. Leave to appeal should be granted but the appeal must be dismissed.

Factual background

In July and August 2020, 50 residents of St Basil’s Home for the Aged (‘St Basil’s’) died during an outbreak of COVID-19. At that time, the first applicant, Mr Kontis, was St Basil’s chairman and the second applicant, Ms Kos, was its facility manager and director of nursing.
In 2021, the State Coroner convened an inquest in the Coroners Court of Victoria into the deaths.
The State Coroner served each applicant with a notice dated 12 August 2021 pursuant to s 42 of the Act, requiring them to provide a statement setting out their evidence in relation to various matters specified in the notices.
At a directions hearing on 18 August 2021, WorkSafe Victoria (‘WorkSafe’) was granted leave to appear in the inquest as an interested party. WorkSafe informed the State Coroner that it was conducting a criminal investigation in relation to potential offences against the Occupational Health and Safety Act 2004 (‘the OHS Act’) in relation to the COVID-19 outbreak at St Basil’s.
On 2 September 2021, the applicants informed the State Coroner that they relied on the protection against self-incrimination pursuant to s 50 of the Act and would therefore not be providing a statement in response to the notices.
On 8 September 2021, lawyers representing family members of a number of deceased residents filed written submissions in relation to the scope of inquiry, relevantly submitting that:
(a)the State Coroner should make a finding that the St Basil’s residents’ deaths were caused or contributed to by conduct on the part of St Basil’s which fell below the appropriate standard of care and was in breach of St Basil’s statutory obligations as an aged care provider; and
(b)the State Coroner should summon the applicants to give evidence at the inquest.
On 3 November 2021, the applicants were each served with a summons requiring that they give evidence at the inquest.
The inquest commenced on 15 November 2021 and continued over 23 hearing days. The applicants were scheduled to give evidence on 15 December 2021, as the last two witnesses. By that time, 55 other witnesses had given oral evidence and many others had made written submissions tendered in the course of the hearing. Various interested parties in the inquest, including the family members, had applied for and been granted leave to cross-examine the applicants regarding certain issues.
WorkSafe was represented at the inquest as an interested party by senior and junior counsel. It had not sought leave to cross-examine the applicants, but was not precluded from doing so at a later stage.
On 6 December 2021, the applicants made an application objecting to giving evidence at the inquest on the grounds that to do so may tend to prove that they had committed an offence against or arising under Australian law.
On 13 December 2021, counsel assisting the State Coroner filed written submissions to the effect that he should compel the applicants to give evidence. Representatives of the families also submitted that the applicants should be called.
On 15 December 2021, the State Coroner heard the applicants’ objections to giving evidence. The applicants were each sworn and examined. Each of them objected to giving evidence on the ground that it may tend to incriminate them, and objected to giving evidence willingly with the protection of a certificate given under s 57(5) of the Act. For the purposes of s 57(2), the State Coroner determined during the hearing that there were reasonable grounds for the applicants’ objections.
The State Coroner then heard argument in respect of the question arising under s 57(4)(b) of the Act, namely whether he was satisfied that the interests of justice required that the applicants give evidence. He reserved his decision.
On 23 December 2021, the State Coroner published a ruling in which he determined that he was ‘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.’[1]
[1]In the Matter of an Inquest Into the Deaths of Residents of St Basil’s Home for the Aged (Coroners Court of Victoria, Judge Cain, 22 December 2021) [97] (‘Ruling’).

Summary of proceeding and issues

On 31 January 2022, the applicants sought judicial review of the State Coroner’s ruling in the Trial Division. The Coroners Court of Victoria, which is the first respondent, was the defendant in the proceeding, and adopted a Hardiman position.[2] The Attorney-General, who is the second respondent in this Court, intervened to address the substance of the arguments.
[2]R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35-6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).
The applicants sought 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 them to give evidence at the inquest.
On 1 August 2022, the trial judge dismissed the proceeding.[3]
[3]Kontis v Coroners Court of Victoria [2022] VSC 422.

Proposed grounds

The applicants advanced four grounds of judicial review before the primary judge. Most of those grounds are no longer pressed. The applicants now advance relatively narrow legal grounds going to the way in which the State Coroner construed and applied the Act. It is convenient to refer to those grounds briefly before setting out relevant provisions of the Act.
First, the applicants contend that, in determining under s 57(4)(b) that he was satisfied that the interests of justice required that the applicants give evidence, the State Coroner misconstrued s 67(1) of the Act, which required him to find, if possible, the cause of a death under investigation. Specifically, he failed to recognise that that obligation is limited by s 57(4). The primary ground of appeal therefore concerns the proper construction and application of those two provisions.
Secondly, the applicants contend that the State Coroner misconceived the ‘interests of justice’ in s 57(4)(b) as being confined to the interests of justice served by the inquest. This argument is raised by the second proposed ground of appeal.
Thirdly, also under the second ground, the applicants contend that the State Coroner failed to correctly apply s 57(4)(b) because he determined that he was satisfied only that it was ‘in the interests of justice’ that the applicants be required to give evidence, and not that the interests of justice ‘required’ that course (as the subsection provides). This argument was not raised before the primary judge and objection has been taken to it being advanced for the first time in this Court.
The proposed grounds are as follows (omitting particulars):
1.The learned primary judge erred in failing to determine that the State Coroner had erred in his Ruling … that he was ‘satisfied that it is in the interests of justice for both Ms Kos and Mr Kontis to be required to give evidence in [the] Inquest’.
2.The learned primary judge erred in failing to determine that the State Coroner had erred in his Ruling … by failing to find, as he was required to find by reason of s 57(4)(b) of the [Act], that he was satisfied that ‘the interests of justice require Mr Kontis and Ms Kos to give evidence in the Inquest’ for the purposes of s 57(4)(b) of the [Act].

Statutory provisions

The Preamble to the Act relevantly 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.
Section 1 identifies the Act’s purposes, relevantly including:
(c)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
(d)to establish the Coroners Court of Victoria as a specialist inquisitorial court; …
Section 6 states that the objectives in pt 2 (ss 6–9) are ‘intended to give guidance in the administration and interpretation’ of the Act.
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 ‘the desirability of promoting public health and safety and the administration of justice’: s 8(f).
Part 4 concerns the investigation of reportable deaths. It includes s 42, pursuant to which, as earlier noted, the State Coroner required that the applicants each prepare and give to him a statement addressing specified matters: s 42(1)(b). A coroner may also require a person to give the coroner a document required for the purposes of the investigation: s 42(1)(a). A person must not fail to comply with a requirement under subsection (1) without a lawful excuse: s 42(3).
Section 49(1) provides that the principal registrar must notify the Director of Public Prosecutions if the coroner investigating a death believes an indictable offence may have been committed in connection with the death.
Section 50, upon which the applicants relied in declining to prepare statements, addresses the privilege against self-incrimination. It provides:
(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 entitled ‘Inquests into deaths and fires’. Section 52 provides, relevantly, that a coroner must hold an inquest into a death which occurred in Victoria if the deceased person was in custody or care. An exception applies if a person has been charged with an indictable offence in respect of the death being investigated: s 52(3)(b).
Section 55 provides that a coroner may exercise specified powers 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 doing ‘anything else the coroner believes necessary’.[4]
[4]Section 55(2)(a), (c), (e).
Section 56 concerns the granting of leave to a person with a ‘sufficient interest’, where ‘appropriate’, to appear as an interested party. As mentioned, the State Coroner granted leave to various parties to appear at the present inquest, including the families, St Basil’s, the applicants and WorkSafe.
Section 57 is critical to the present application. It provides:
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.
Section 62 provides that a coroner holding an inquest is not bound by the rules of evidence.
Section 66 provides for the rights of interested parties. Such a party may make submissions as to who is a relevant witness. With the permission of the coroner, they may examine or cross-examine witnesses and make submissions.
The other critical provision, s 67, relevantly provides:
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.
Section 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 governs the situation where a person has been charged with an indictable offence in respect of the death in question:
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 coroners’ reports and recommendations. In particular, s 72(2) provides:
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.

State Coroner’s ruling

In his ruling, the State Coroner set out the background to the applications and identified the issue for decision as ‘whether I am satisfied that the “interests of justice” require Mr Kontis and Ms Kos to give evidence in the Inquest.’[5] This is the inquiry stipulated by s 57(4)(b).[6]
[5]Ruling [19].
[6]
The State Coroner then summarised the submissions that had been made, in writing and at an oral hearing. The applicants had advanced four reasons why it was not in the interests of justice to require either of them to give evidence.
(a)It was first submitted that the matters about which they were to be compelled to give evidence were directly relevant to potential offences against the OHS Act that might be alleged against them. The duties that might be alleged to have been breached included duties of an employer to employees and third persons, duties of an employee, and duties of a person with management and control of a workplace.[7] The applicants also pointed to the potential for criminal liability of an officer of a contravening body corporate.[8]
(b)Secondly, the applicants submitted that, although a certificate granted under s 57(5) of the Act prevents the use of evidence given under compulsion, that protection was incomplete because of potential forensic advantages derived by investigators and prosecutors from the giving of the evidence.
(c)Thirdly, the applicants said that, even if those advantages were limited by the making of a suppression order, they remained at risk of prejudice by being deprived of the full protections of the accusatorial system of criminal justice, as explained by the High Court in X7 v Australian Crime Commission (‘X7’).[9]
(d)Fourthly, the applicants submitted that their evidence would be of low probative value because there was already ample evidence to enable the State Coroner to perform his functions.
[7]OHS Act, ss 21, 23, 25, 26.
[8]Ibid, s 144.
[9](2013) 248 CLR 92, 127 [71] (Hayne and Bell JJ).

The applicants relied on what they said were parallels with the case of Villan v Victoria,[10] in which a civil proceeding was stayed because a critical witness was likely to be the subject of a criminal investigation and the subject matter of his evidence in the civil proceeding would be identical to the subject matter of the potential investigation.
[10][2021] VSC 354 (‘Villan’).
The State Coroner’s ruling then set out the submissions of counsel assisting.
(a)First, counsel assisting submitted that WorkSafe, through its counsel, had not mentioned any investigation of the personal liability of either applicant, having told the State Coroner only that it was investigating suspected contravention of the OHS Act by St Basil’s.
(b)Secondly, counsel assisting submitted that the extent to which a certificate under s 57(5) of the Act protected a witness who had invoked the privilege against self-incrimination from prejudice reflected a legislative choice that balanced the interests of individuals against broader public interests sought to be advanced by the Act. As such, the fact that such protection was incomplete was a ‘neutral consideration’.
(c)Thirdly, it was submitted that X7 was distinguishable because it involved an unlawful compulsory examination after the witness had been charged with serious criminal offences. Counsel submitted that a closer analogy was provided by R v Independent Broad-based Anti-corruption Commissioner, in which a lawful examination of persons who had not been charged with any offence was allowed to proceed.[11]
(d)Finally, counsel assisting submitted that the evidence of the applicants would be directly relevant to and probative of matters under investigation, given the senior roles they performed at the facility.
[11](2016) 256 CLR 459.
The family members who were appearing as interested parties adopted the submissions of counsel assisting.
Having summarised the submissions, the State Coroner next examined the arguments in turn, under the heading ‘Consideration’.
As to the applicants’ first argument, concerning the potential for them to face charges under the OHS Act, the State Coroner noted that there was no evidence that either applicant was an employer within the meaning of the OHS Act so as to attract potential liability under ss 21 or 23 of the OHS Act.[12] He also noted that there had been no suggestion that the applicants’ personal liability was being investigated, and concluded that the risk of them being charged was ‘speculative’.[13] Even assuming there was some risk of them being charged under ss 25, 26 or 144, those offences attracted a penalty of a fine, and it was very difficult to predict what degree of overlap there might be between any such charge and the evidence in the inquest.[14] He distinguished Villan on these bases.[15]
[12]Ruling [51].
[13]Ibid [55].
[14]Ibid [53], [57].
[15]Ibid [58].
On this part of the argument, the State Coroner determined that he must assess the ‘interests of justice’ against the background that the applicants ‘may face one or more charges of moderate seriousness … where the extent of any overlap of subject matter between those potential charges and my inquiry is unclear’.[16]
[16]Ibid.
Secondly, the State Coroner accepted that a certificate granted under s 57(5) of the Act ‘does not prevent any and all prejudice in the event that the applicants face one or more charges in the future’.[17] He observed that this argument overlapped with the applicants’ third ground, regarding X7.[18] He noted, however, that the New South Wales Court of Appeal had stated that the premise of the equivalent provision in that State was 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’.[19] He continued:
Further, as was also explained by the NSW Court of Appeal in Rich, any prejudice to the witness is required ‘to be weighed in the balance of the interests of justice favouring obtaining the evidence’. The premise of section 61 of the NSW Act ‘... is that a witness is exposed to risk, in which case, s 61(4) obliges the Coroner to undertake an evaluative assessment of the interests of justice’. Section 57(4) of the Act requires me to make the same evaluative assessment, to which I now turn.[20]
[17]Ibid [65].
[18]Ibid [59].
[19]Richv Attorney General (NSW) [2013] NSWCA 419 [38] (Leeming JA, Bathurst CJ agreeing at [1], Beazley P agreeing at [2]) (‘Rich’).
[20]Ruling [66] (emphasis added by State Coroner) (citations omitted), citing Rich [2013] NSWCA 419 [39].
To this point, the ruling had addressed the first three arguments advanced by the applicants, leaving the fourth argument as to probative value and the final issue, being the assessment under s 57(4)(b). The State Coroner next turned to that final issue, and set out some legal conclusions about the statutory task under s 57(4).[21] Although he did so under the heading ‘Interests of justice in the proceeding’, which could be construed as being confined to the interests of justice in the inquest itself, there is no indication that this part of the ruling is so limited. Instead, it is evident that the words ‘in the proceeding’ refer to the application of the interests of justice test in this particular case.
[21]Ruling [67]–[72].
The State Coroner held that the phrase ‘interests of justice’ was ‘to be given the widest possible meaning’, and that its content was to be determined by reference to the context in which it was used.[22] He went on:
The starting point for the application of the test in section 57(4)(b) is a correct understanding of the statutory task imposed on this Court. As Counsel Assisting submitted, ‘in evaluating where the “interests of justice” lie in this matter, regard must be had to the scope and purpose of the Act and the Coroner’s functions and powers conferred by the Act and in particular section 57.[23]
[22]Ibid [67]–[69], citing Rich [2013] NSWCA 419 [18]–[19].
[23]Ruling [71], citing Lee v New South Wales Crime Commission (2013) 251 CLR 196, 208 [14], 230 [56] (French CJ) and Priest v West (2012) 40 VR 521, 560 [167] (Tate JA) (‘Priest’).
The State Coroner then set out the submissions of counsel assisting on this issue, noting that, with one exception which is not now relevant, those submissions were not challenged by the applicants. The submissions were relevantly as follows:
The jurisdiction of the Coroners Court is inquisitorial; it is neither accusatorial nor adversarial in nature.
A Coroner is empowered to investigate deaths falling within the jurisdiction of the Coroners Court, and in so doing, to make findings with respect to matters in s 67 of the Act, including, relevantly, the circumstances in which a death occurred. The requirement that findings must be made ‘if possible’ underscores that it is obligatory for a Coroner to ‘pursue all reasonable lines of inquiry’.[24]
[24]Priest (2012) 40 VR 521, 524 [4] (Maxwell P and Harper JA).
A Coroner is not bound by the rules of evidence but may be informed in any manner that he or she reasonably thinks fit. As has been observed in the Court of Appeal:
It is precisely because the Coroner must do everything possible to determine the cause and circumstances of the death that Parliament has removed all inhibitions on the collection and consideration of material which may assist in the task.[25]
A Coroner is obliged to investigate all of the circumstances of a death within the Court’s jurisdiction.[26] The Coroner ‘must discover all he or she can about the circumstances surrounding the death’.[27] A failure to make a relevant inquiry can give rise to jurisdictional error by a constructive failure to exercise jurisdiction.[28] In fulfilling these statutory functions, a Coroner must be an active investigator.[29]
It is for a Coroner, and a Coroner alone, to determine both the witnesses to be called and the relevant issues for the purpose of an inquest. In this inquest, the Coroner outlined the relevant issues on 8 October 2021. The Coroner has determined that he wishes to call Ms Kos and Mr Kontis.
These statutory requirements are particularly important where a Coroner is investigating not one but 50 deaths. There is a very great public interest in such an inquest being thoroughly conducted with all lines of inquiry pursued and all relevant witnesses examined so as to inform the s 67 findings.
The Coroner also has a discretion to make recommendations to a Minister, public statutory authority or entity, including in relation to public health and safety or the administration of justice. This important power underpins the preventative function that may be discharged by the Court.
In exercising powers under the Act, a Coroner is obliged to have regard, as far as possible, to certain objectives, including, relevantly, the ‘desirability of promoting public health and safety and the administration of justice’.
If the Coroner forms a belief that an indictable offence ‘may have been committed in connection with [a] death’, he or she must, through the principal registrar, notify the Director of Public Prosecutions. In discharging the functions conferred by the Act, the Coroner enjoys broad investigatory powers, including coercive powers that expressly override common law protections.[30]
[25]Ibid 524 [6] (Maxwell P and Harper JA).
[26]Thales Australia Ltd v Coroners Court [2011] VSC 133 [72] (Beach J).
[27]Priest (2012) 40 VR 521, 560 [167] (Tate JA), citing Law Reform Committee, Parliament of Victoria, Coroners Act 1985 (Final Report, September 2006) 251.
[28]Ibid 525 [10]–[11] (Maxwell P and Harper JA).
[29]Ibid 524 [3] (Maxwell P and Harper JA), 561 [171] (Tate JA).
[30]Ruling [72] (some citations omitted).
The State Coroner cited a passage in the reasons of Tate JA in Priest v West for the proposition that ‘this Court is required to discover all it can about the circumstances’ of the deaths under investigation.[31]
[31]Ibid [74], citing Priest (2012) 40 VR 521, 560 [167] (Tate JA) (emphasis in original).
Next, the ruling turned to the applicants’ fourth argument, concerning the probative value of the evidence they would give.[32] He noted the ‘hands on’ role they played in the daily management of St Basil’s and concluded that they were ‘clearly in a position to give direct evidence about nearly all of the topics identified in the scope of this inquiry’, as their counsel had recognised in oral submissions.[33] The State Coroner rejected the applicants’ submission that the question was whether he was able to make the findings required by s 67 of the Act in the absence of any evidence from them. He said that the correct question was whether, in the absence of that evidence, he was ‘able to fulfil the statutory requirement of conducting as complete and thorough an examination of the circumstances of the deaths as can be reasonably done’.[34]
[32]Ruling [75].
[33]Ibid [76].
[34]Ibid [77].
The State Coroner then canvassed the areas in respect of which the applicants could be expected to give evidence, noting that there was little or no evidence in relation to some of those matters presently before the Court and that the answers were known only to the applicants. He said that their answers to those questions would enable the Court ‘to fulfil its statutory duty to investigate the circumstances of the 50 deaths thoroughly as required by the Act’.[35] In addition, the evidence would inform his exercise of the power under s 72(2) to make recommendations about public health and safety.[36]
[35]Ibid [82]–[83].
[36]Ibid [84].
The State Coroner said that it was ‘of the utmost importance that my findings are based on all available evidence’ and that there were important gaps in the evidence, being the evidence which the applicants were able to give.[37]
[37]Ibid [85].
In rejecting the submission that there was already ample evidence before the inquest on every topic of inquiry upon which findings could be made, the State Coroner said:
I consider that these submissions proceed on a mis-apprehension about the nature of an inquest in which there are no ‘facts in issue’ as there are in adversarial litigation. As noted above, the Court’s task is to ‘do everything possible to determine the cause and circumstances of the deaths’ under examination. The findings that the court is able to make on the evidence as it stands will not satisfy this requirement.
I accept Counsel Assisting’s submission that ‘a significant lacuna exists in respect of the evidence’. As a result, I consider that there is a real risk that the inquisitorial and remedial functions of the inquest — and therefore the interests of justice to be served by the inquest process — will be frustrated if the evidence of Mr Kontis and Ms Kos is not before the Court.[38]
[38]Ibid [91]–[92] (citation omitted).
The ruling concludes:
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.[39]
[39]Ibid [97].

The three arguments

First argument — construction of ss 57(4) and 67(1)

The applicants submitted that the State Coroner misconstrued ss 57(4) and 67(1) of the Act. They submitted that he had placed undue reliance on observations in this Court’s reasons in Priest v West, made in a different context, to conclude that s 67(1) obliged him to conduct as thorough and complete an investigation as he could, and to do everything possible to determine the cause and circumstances of the deaths under investigation, meaning that he would fail in his duty if he did not require the applicants to give evidence. In doing so, it was said, he failed to recognise that s 57(4) operates as a limit on the obligation to investigate in s 67(1). This approach, it was said, failed to address the ‘interests of justice’ inquiry mandated by s 57(4)(b).
The State Coroner relied on several passages in the reasons in Priest v West. In that case, two rulings of a coroner were challenged. In the first ruling, the coroner had declined to accept evidence about deaths other than the death under investigation, on the grounds of relevance. In the second ruling, the coroner had decided not to compel a person who may have caused the deaths to give evidence, on the grounds that the coroner would not be confident of its reliability.
The Court held that both rulings were incorrect. In the case of the first ruling, the evidence was relevant and it was the obligation of the coroner to pursue all reasonable lines of inquiry. The second ruling was incorrect because s 57(3) of the Act obliged the coroner to first inform the potential witness that if he gave evidence he would be given a certificate of immunity and could thereafter be compelled to give evidence if the interests of justice so required. The coroner’s failure to satisfy this precondition deprived him of the power to make the second ruling.[40]
[40]Priest (2012) 40 VR 521, 557 [151] (Tate JA).
Maxwell P and Harper JA stated that the words ‘if possible’ in s 57 made it ‘obligatory … for the coroner investigating a death to pursue all reasonable lines of inquiry’.[41] Later, they said:
It is precisely because the coroner must do everything possible to determine the cause and circumstances of the death that Parliament has removed all inhibitions on the collection and consideration of material which may assist in that task.[42]
[41]Ibid 524 [4] (Maxwell P and Harper JA).
[42]Ibid 524 [6].
The joint judgment addressed s 57(4) only briefly, agreeing with the reasons of Tate JA in respect of the second ruling. They said, however, that the question whether the potential witness was to be required to give evidence, in accordance with s 57(4)(b) of the Act, would ‘need to be considered in the light of what we have said about the coroner’s investigative obligation’.[43]
[43]Ibid 530 [33].
Tate JA considered s 57 in the context of the second ruling. As mentioned, the ruling was held to be invalid because the coroner failed to discharge his obligation under
s 57(3). Tate JA went on to consider an argument that the coroner had failed to take relevant considerations into account, or taken into account irrelevant considerations, in making the second ruling. In that context, she noted the inquisitorial nature of the coroner’s role and cited a parliamentary report which stated:
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.[44]
[44]Priest (2012) 40 VR 521, 560 [167], quoting Law Reform Committee, Parliament of Victoria, Coroners Act 1985 (Final Report, September 2006) 251.
The Court in Priest v West was not called upon to decide anything about the scope of the power in s 57(4)(b), and did not do so. In those circumstances, the broadly expressed observations about the scope of the duty to investigate under s 67(1) cannot be treated as circumscribing the meaning and operation of s 57(4)(2)(b). In particular, the observation of Maxwell P and Harper JA that the Act has removed ‘all’ inhibitions on the collection of evidence, and the parliamentary report’s statement cited by Tate JA, to the effect that a coroner must discover ‘all he or she can’, should not be given literal application in the context of s 57. On the other hand, as the joint judgment stated and the State Coroner recognised, s 67(1) and the Court’s observations in respect of it are part of the context in which s 57(4)(b) is to be construed and applied.[45]
[45]Priest (2012) 40 VR 521, 530 [33]; and Ruling [71], set out at [52] above.
The applicants submit that the State Coroner fell into error by attributing decisive or overriding weight to the identified statements in Priest v West when he approached the statutory task in s 57(4)(b), so as to misconceive the nature of the ‘interests of justice’ he was required to evaluate. They point to parts of the ruling in which the State Coroner emphasised the need to complete his inquiry ‘thoroughly’, to discover ‘all he [could]’, and to ‘pursue all reasonable lines of inquiry’.[46]
[46]Ibid [74], [77], [83], [85], [91], [92].
It is true that the State Coroner made these observations, and others to like effect, in the course of his ruling. But on a fair reading of the whole ruling, he did not make the error suggested by the applicants. He stated the question at the outset of his ruling as being, correctly, whether the interests of justice required the applicants to give evidence.[47] He cited the New South Wales Court of Appeal decision in Rich v Attorney General (NSW) (‘Rich’) to the effect that this obliged him to undertake an evaluative assessment of the interests of justice.[48] He noted, uncontroversially, that the test in s 57(4)(b) was to be understood having regard to the ‘scope and purpose of the Act and the Coroner’s functions and powers as conferred by the Act’[49] — which include, of course, s 67. He set out submissions of counsel assisting, including submissions relying on the reasons in Priest v West, with which the applicants did not disagree.[50]
[47]Ibid [19].
[48]Ibid [66].
[49]Ruling [71].
[50]These submissions relevantly relied on the passages of the respective judgments in Priest referred to at [63] and [65] above.
The ruling addressed each of the grounds on which the applicants submitted they should not be required to give evidence. It did so against the background of the inquisitorial function the State Coroner was required to perform. The State Coroner considered the factors said to point against requiring the applicants to give evidence, as well as his duty to investigate the 50 deaths and make recommendations following as thorough an inquiry as possible.

We do not read the ruling as suggesting that the latter duties effectively answered the statutory question in s 57(4)(b), once it was established that the evidence was relevant and probative. If that was the State Coroner’s approach to s 57(4), there would have been no point in addressing the other matters raised by the applicants. In respect of the inquest itself, it is true that the State Coroner held that the interests of justice to be served by the inquest would be ‘frustrated’ if the evidence were not given.[51] But that was not the full extent of his assessment. Instead, the ruling’s analysis of the applicants’ arguments reveals that it formed only a part of the wider evaluative assessment described in Rich and undertaken by the State Coroner.[52]
[51]Ruling [92].
[52]We note that in oral argument there was some discussion about the fact that, after considering the various matters raised by the applicants and counsel assisting, the ruling did not expressly set out a statement about the balancing of those matters. It is not entirely clear how this point relates to either ground of appeal, but we note for completeness that we consider that, read fairly and in its entirety, the ruling reveals that the State Coroner balanced the various matters identified by the applicants that suggested they ought not be compelled to give evidence against the importance to the conduct of the inquest of the evidence they might give.
In particular, the State Coroner examined the potential for the applicants to face charges under the OHS Act, and the possible overlap between the subject matter of those charges and the evidence the applicants may give in the inquest.[53] He considered the implications of requiring the applicants to give evidence in that context. He acknowledged that s 57(5) would provide incomplete protection to the applicants and forensically advantage investigating and prosecuting authorities.[54] He recognised that compelling the applicants to give evidence would alter the accusatorial system of criminal justice as identified by the High Court in X7, and accepted that this was an important consideration.[55] He expressly acknowledged that the ‘interests of justice’ question was to be addressed against this background.[56]
[53]Ruling [58].
[54]Ibid [65]–[66].
[55]Ibid [60]–[61].
[56]Ibid [58], [66].
In undertaking this analysis, we consider that the State Coroner weighed the considerations bearing on the interests of justice as he was required to do. We do not read the ruling as indicating that he treated the need for his inquiry to be as thorough as possible as confining the scope of the ‘interests of justice’ he was required to evaluate. It has not been shown that the State Coroner misconstrued the Act in the manner suggested.
We would therefore reject the first proposed ground of appeal.

Second argument — ‘interests of justice’

The second argument advanced by the applicants fastens on the State Coroner’s statement near the end of the ruling, in the following terms:
I accept Counsel Assisting’s submission that ‘a significant lacuna exists in respect of the evidence’. As a result, I consider that there is a real risk that the inquisitorial and remedial functions of the inquest — and therefore the interests of justice to be served by the inquest process — will be frustrated if the evidence of Mr Kontis and Ms Kos is not before the Court.[57]
[57]Ibid [92] (citation omitted).
The applicants contended that this passage reveals that the State Coroner misconceived the ‘interests of justice’ in s 57(4)(b) as being confined to the interests of justice to be served by the inquest process. It was contended that this was borne out by the fact that the ruling had, after articulating the principles governing s 57(4)(b) — under the heading ‘Interests of justice in the proceeding’ — only addressed matters bearing on the interests of justice in relation to the inquest. This latter part of the ruling emphasised the obligation on the State Coroner to conduct a thorough investigation as described, in various terms, in Priest v West, but did not separately address the wider interests of and prejudice to the applicants.
We reject that contention. It is true that, in the passage set out, the State Coroner reached a conclusion about the interests of justice ‘to be served by the inquest process’. But that passage must be understood in the context of the ruling as a whole. For reasons already explained in respect of the first argument, it is evident that the State Coroner looked well beyond the inquest process in evaluating the interests of justice. The passage in question is in the section of the ruling dealing with the applicants’ ‘probative value’ argument. It does nothing more than reject that argument, in emphatic terms: that is, not only would the evidence have probative value, but, by reason of the incomplete state of the evidence without it, its absence would frustrate the inquisitorial and remedial functions of the inquest. That was plainly a matter relevant to the inquiry required by s 57(4)(b), and the State Coroner did not err in taking this into account.
This aspect of the second proposed ground cannot be accepted.

Third argument — what the interests of justice ‘require’

The third and final submission of the applicants was not advanced before the primary judge. The Attorney-General submitted that this Court should therefore not entertain it. We disagree. The submission is based solely on the terms of the ruling. It involves a question of statutory construction of wider importance. It is expedient in the interests of justice to allow it to be raised.[58] It would be unjust, to say the least, to allow the State Coroner’s decision to stand if he had applied the wrong test as the applicants now allege.
[58]Anderson v Stonnington City Council (2020) 62 VR 147, 159 [52] (Maxwell P, Tate and McLeish JJA).
The argument rests on the final paragraph of the ruling which appears under the heading ‘Conclusion’ and reads: ‘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.’[59]
[59]Ruling [97].
The applicants point to the following analysis of Besanko J in Roberts-Smith v Fairfax Media Publications Pty Ltd [No 28] (‘Roberts-Smith’),[60] which concerns the equivalent provision in the Evidence Act1995 (Cth):
Section 128(4)(b) requires the Court to be satisfied that the interests of justice require that the witness give the evidence. This is a high standard and higher than if the paragraph had provided that the interests of justice favour that the witness give the evidence. This was noted by Bathurst CJ in Gedeon as follows (at [286]):
Second, the requisite standard provided for in s 128(4)(b) of the Evidence Act is that the interests of justice require admission of the evidence. It is not enough that the evidence be relevant and in this case satisfy the exception to the credibility rule in s 103 of the Evidence Act. This relatively high standard of satisfaction is consistent with the fact that the legislation to a significant extent abrogates a basic common law right.[61]
[60][2022] FCA 115 (‘Roberts-Smith’).
[61]Ibid [31], citing Gedeon v The Queen (2013) 280 FLR 275, 323 [286] (Bathurst CJ, Beazley P agreeing at 332 [347], Hoeben CJ at CL agreeing at 332 [348], Blanch J agreeing at 332 [349], Price J agreeing at 332 [350]) (emphasis in original); [2013] NSWCCA 275.
It seems that the cases had not made this point in quite these terms before the decision in Roberts-Smith. We accept, as Besanko J held, that a requirement that a court be satisfied that the interests of justice ‘require’ that evidence be given, on the one hand, is a higher standard than a requirement of satisfaction that the interests of justice ‘favour’ that course, on the other. But the ruling’s conclusion is not expressed in terms of what the interests of justice ‘favour’, only what is ‘in’ the interests of justice.
Concentrating on that form of words, we doubt whether a requirement of satisfaction that something is ‘in the interests of justice’ is qualitatively different from a requirement of satisfaction that the interests of justice ‘require’ that thing. Conversely, we do not think that a conclusion that the interests of justice ‘favour’ something is as demanding as a test which requires that the thing is ‘in the interests of justice’. In other words, we doubt whether what is said in Roberts-Smith (or the passage in Gedeon v The Queen cited in support) is properly to be read as making a distinction between a requirement that the interests of justice ‘require’ the giving of the evidence and a requirement that it is ‘in the interests of justice’ for that to be done.
Assuming, however, for present purposes that there is a difference, we do not think that the use of the latter formulation at the end of the ruling shows that the State Coroner applied the wrong test. He referred to the correct test early in the ruling, as already mentioned.[62] He repeated the test, in its statutory terms and by reference to the decision in Rich, when he turned to apply s 57(4)(b).[63] The final paragraph of the ruling must be read in the context of those more detailed and explicit statements. A fair reading of the ruling as a whole shows that the State Coroner applied the statutory test and merely used inexact (or different) language in summarising his conclusion.
[62]Ruling [19].
[63]Ibid [70].

Conclusion

Leave to appeal should be granted but the appeal must be dismissed.
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It was not in doubt that s 57(4)(a) was satisfied. For completeness, it was also not suggested that, if both paragraphs of s 57(4) were satisfied, there was any discretionary basis upon which the State Coroner might decide not to require the applicants to give evidence. In oral argument in this Court, the question was raised whether there is in fact any discretion under s 57(4), or whether the word ‘may’ is properly construed to mean that, where the two conditions in the provision are met, the witness must be required to give evidence; see, eg, Commissioner of State Revenue v Royal Insurance Australia Ltd (1994)

182 CLR 51, 97–8 (Dawson J), citing Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, 235 (Lord Selborne) and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134 (Windeyer J). That issue need not be decided in the present matter.

[2022] VSCA 274

12 December 2022