Musumeci v Attorney General of NSW

[2003] NSWCA 77

Reported Decision: 57 NSWLR 193
140 A Crim R 376

Court of Appeal

CITATION:	Musumeci v Attorney General of NSW & Anor [2003] NSWCA 77
HEARING DATE(S):	04/03/03
JUDGMENT DATE:	9 May 2003
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 2; Young CJ in Eq at 42
DECISION:	By Majority (1) Leave to appeal granted (2) Direct the claimant to file in the registry of the Court within 48 hours a notice of appeal in the form of the draft that has been handed to the Court (3) Appeal upheld (4) Judgment of Hidden J in the Court below be set aside (5) Subject to any question of privilege or immunity, the Coroner, in continuing the inquest, supply to the claimant forthwith all material in his possession or in the possession of the sergeant assisting which relates to possible involvement of the claimant in the death of Pauline Elsie Anne Gillard (6) First Opponent to pay the costs of the claimant of the appeal and of the proceedings in the Court below.
CATCHWORDS:	CORONIAL INQUEST - Coroners Act 1980, s 19 - Requirements of procedural fairness - Nature of a coronial inquest - Stage at which procedural fairness requires the disclosure of all relevant material to a witness whose interests might be adversely affected by the exercise of the Coroner's powers under s 19 - Circumstances in which the withholding of relevant material from such a witness is necessary to protect the integrity of the investigation - Withholding relevant material for tactical reasons. D
LEGISLATION CITED:	Coroners Act 1980, ss 19, 22, 22A, 31, 32, 33, 47 Education Commission Act 1980 Justices Act 1902, s 41 Supreme Court Act 1970, s 65
CASES CITED:	Allcroft v London (Bishop) [1981] AC 666 Annetts v McCann (1990) 170 CLR 596 Attorney General v Maksimovich (1985) 4 NSWLR 300 Bruce v Cole (NSWCA, 12 June 1998, unreported) Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 826 Harrison v Pattison (1988) 14 ALD 570 Herron v Attorney General for NSW (1987) 8 NSWLR 601 John Fairfax & Sons Ltd v Gill (1988) 12 NSWLR 77 Kioa v West (1985) 159 CLR 550 Maksimovich v Walsh (1985) 4 NSWLR 318 Mannah v State Drug Crime Commission (1987) 13 NSWLR 28 McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54 Minister for Immigration and Multicultural Affairs; Re Ex Parte Lam [2003] HCA 6 Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 Russell v Norfolk (Duke) [1949] 1 All ER 109 R v South London Coroner, Ex Parte Thompson (1982) 126 SJ 625 Sankey v Whitlam (1978) 142 CLR 1 Stanton v Abernathy (1990) 19 NSWLR 656
PARTIES :	Andrew Musumeci (Claimant) Attorney General of NSW (First Opponent) Mr C Milovanovich (Second Opponent)
FILE NUMBER(S):	CA 40593/02
COUNSEL:	J Basten QC/ B Vasic (Claimant) P A Johnson SC/A Naylor (First Opponent) Submitting Appearance (Second Opponent)
SOLICITORS:	Dominic David Stamfords (Claimant) I V Knight - Crown Solicitor (First Opponent) Submitting Appearance (Second Opponent)

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 10609/02
LOWER COURT JUDICIAL OFFICER :	Hidden J

CA 40953/02
SC 10609/02

BEAZLEY JA
IPP JA
YOUNG CJ IN EQ

Friday 9 May 2003

MUSUMECI V ATTORNEY GENERAL OF NSW & ANOR

FACTS

An inquest held into the death of Pauline Gillard was opened on 4 March 2002 and conducted by the Deputy State Coroner (“the Coroner”). The claimant received a letter from the clerk of the Coroner’s Court informing him that he would be called as a witness at the hearing. The letter stated that “it may be in [the claimant’s] interest to seek legal advice … particularly having regard to … s 19 and 33 of the Coroner’s Act 1980”.

On the opening day of the inquest, counsel then appearing for the claimant learned that the police sergeant leading the evidence and the Coroner were in possession of evidence that had not been provided to the claimant. Counsel for the claimant requested the additional material on both the opening and second day of the inquest. The Coroner refused to supply the claimant with the material at that stage, stating “there are tactical reasons why certain witnesses are being called and certain evidence is not being fully made available to all witnesses”. The Coroner remarked that, as a matter of procedural fairness, when he came to consider whether he should form a s 19 opinion concerning the claimant, the material would be provided to the legal representatives who would also be “given every opportunity to either recall witnesses or to cross-examine and to fully examine that material”.

The claimant sought a declaration before Hidden J that the Coroner had erred in law in refusing him access to the material. His Honour concluded that the Coroner’s reference to “tactical reasons” when explaining his reasons for refusing to provide the withheld material to the claimant related to the “integrity of the investigation”. He held that a Coroner, in the interests of the integrity of the investigation of a death, may withhold material from a witness unless and until the rules of procedural fairness require its disclosure. Having, at this stage of the inquest, not formed a s 19 opinion, the Coroner’s reasons for withholding the material were sound and procedural fairness did not dictate the disclosure of the material. The claimant’s summons was dismissed. The claimant appeals against that dismissal.

HELD per Ipp JA (Beazley JA agreeing)

(i) The “integrity of the investigation” refers to such matters as the safety of witnesses, the preparedness of witnesses to testify and the ability of the police to find witnesses. There is nothing to suggest that the disclosure of the additional material to the claimant would bear upon the integrity of the investigation so understood, and there is nothing that suggests that the withholding of the material would advance the investigation or revealing the material would retard it. Indeed, the word “tactics” used by the Coroner carries with it a strong flavour of forensic benefit, which does not bear on the integrity of the investigation. Forensic benefit as a motivation for decisions made by a coroner has previously been criticised: Maksimovich v Walsh (1985) 4 NSWLR 318 at 328 per Kirby J. It is not a sound basis for refusing to disclose the material.

(ii) This leads to the question of whether procedural fairness requires the claimant to be given the material at this early stage of the inquest (the end of the second day of a ten-day inquest).

(a) Three points are noted concerning the nature of coronial inquests. First, a coronial inquest is a hybrid process containing both adversarial and inquisitorial elements. Second, Coroners exercise judicial power, notwithstanding the executive functions. Third, the proceedings in the Coroner’s Court involve the administration of justice: See R v South London Coroner, Ex Parte Thompson (1982) 126 SJ 625 (cited in Annetts v McCann (1990) 170 CLR 596; Fairfax Publications Pty Ltd v Abernethy [1999] NSWCS 826 per Adams J; Maksimovich v Walsh at 327-8 per Kirby P and 337 per Samuels JA; Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 at 6;Herron v Attorney General for NSW (1987) 8 NSWLR 601 per Kirby P at 608.

(b) The requirements of natural justice, which apply to coronial inquests, are flexible and vary with the circumstances of the case: Kioa v West (1985) 159 CLR 550 at 584. If a point is reached in an inquest where, to deprive the person affected of the opportunity of properly defending themselves, responding, seeking to call other evidence or otherwise to rebut assertions contained in relevant material “fair procedures … would require that [a] copy of the [material], or the relevant extracts from it, [be] made available to the claimant’; Maksimovich v Walsh at 328 per Kirby P. There is a clear inference that in this inquest such a point has been reached. The inference to be drawn from the reference to s 19 in the letter sent to the claimant from the clerk of the Coroner’s Court is that the Coroner considered that there was a possibility that he might form an adverse opinion under s 19(1)(b). The claimant was also granted leave pursuant to s 32(1) to be represented at the inquest, reinforcing this inference.

(c) In the circumstances of this case, disclosure of the material would not impose unreasonable requirements and undue burdens on the Coroner or police, it would not detract from the efficiency and utility of the inquiry and would not result in any relevant harm: Maksimovich v Walsh at 327-328. Thus, subject to any question of privilege or immunity, the Coroner, in continuing the inquest, must supply to the claimant all material in his possession or in the possession of the sergeant assisting which relates to the possible involvement of the claimant in the death of Miss Gillard.

HELD per Young CJ in Eq

(i) If, and only if, “tactics” is used in the sense of protecting the integrity of the inquiry, it is a legitimate reason for a coroner to withhold the additional material. The conclusion of Hidden J that the Coroner’s reference to “tactical reasons” when explaining his reasons for refusing to provide the withheld material to the claimant related to the “integrity of the investigation” is one which could reasonably have been held, and it was one that was not challenged in the notice of appeal.

(ii) The key question on appeal then becomes whether the Coroner has denied natural justice to the claimant or whether there has been an anticipatory denial of natural justice. This involves the sub-question, at what stage of the inquest does natural justice require the additional material to be disclosed to the claimant? Natural justice is infinitely variable: Russell v Norfolk (Duke) [1949] 1 All ER 109 at 118; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504;McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54 at 59-60. Natural justice requires that when the Coroner is on the verge of forming a s 19 opinion or has the possibility seriously in mind, at that stage the relevant material should be in the hands of the claimant: Maksimovich v Walsh at 330 per Kirby P. In the present case this has not yet occurred.

ORDERS

By Majority:

1. Leave to appeal granted.

2. Direct the claimant to file in the registry of the Court within 48 hours a notice of appeal in the form of the draft that has been handed to the Court.

3. Appeal upheld.

4. Judgment of Hidden J in the Court below set aside.

5. Subject to any question of privilege or immunity the Coroner, in continuing the inquest, supply to the claimant forthwith all material in his possession or in the possession of the sergeant assisting, which relates to the possible involvement of the claimant in the death of Pauline Elsie Anne Gillard.

6. First opponent to pay the costs of the claimant of the appeal and of the proceedings in the court below.

CA 40953/02
SC 10609/02

BEAZLEY JA
IPP JA
YOUNG CJ IN EQ

Friday 9 May 2003

MUSUMECI V ATTORNEY GENERAL OF NSW & ANOR

Judgment

1 BEAZLEY JA: I agree with Ipp JA.

2 IPP JA: This application for leave to appeal and appeal concern an inquest held into the death of Pauline Gillard. On 18 September 1997 Miss Gillard was shot dead at her home in Balmain. The inquest was opened on 4 March 2002. It was conducted by the second opponent, the Deputy State Coroner, to whom I shall refer as “the Coroner”.

3 By letter dated 19 February 2002 the clerk of the Coroner’s Court informed the claimant that he would be called as a witness at the hearing. The letter called the claimant’s attention to s 19 of the Coroners Act 1980 and stated:

“It may be in your interest to seek legal advice prior to that date, particularly having regard to the provisions of s 19 and 33 of the Coroners Act, 1980”.

4 Section 19 of the Coroners Act 1980 provides relevantly:

“19(1) This section applies if:
…
(b) at any time during the course of an inquest or inquiry, the coroner is of the opinion that, having regard to all the evidence given up to that time:
(i) the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, and
(ii) there is a reasonable prospect that a jury would convict the known person of the indictable offence,
and the indictable offence is one in which the question whether the … known person caused the death … is in issue.
…
(1B) If this section applies to an inquest as provided by subsection (1)(b), the Coroner may continue the inquest and:
(a) record under section 22(1) the findings of the coroner … or
(b) after taking the evidence to establish the death, the identity of the deceased and the date and place of death – terminate the inquest …
(2) The coroner is required to forward to the Director of Public Prosecutions the depositions taken at an inquest or inquiry to which this section applies together with a statement that is signed by the coroner and specifies … the name of the known person, and the particulars of the offence, so referred to.”

5 Section 22(1) findings (to which reference is made in s 19(1B)(a)) are findings as to the identity of the person who has died or is suspected to have died, the date and place of the person’s death, and, except in the case of an inquest continued or terminated under s 19, the manner and cause of the person’s death.

6 Section 19 empowers the Coroner, upon forming an opinion of the kind described in s 19(1), either to continue the inquest and record his or her findings under s 22, or (after taking evidence to establish the death, the identity of the deceased and the date and place of death), terminate the inquest.

7 The inference to be drawn from the reference to s 19 in the letter of 19 February 2002 is that the Coroner considered that there was a possibility that he might form an opinion under s 19(1)(b) that the evidence to be led before him might be found to be capable of satisfying a jury beyond reasonable doubt that the claimant had committed an indictable offence.

8 When the inquest commenced, the Coroner granted the claimant leave to be represented at the inquest by counsel and to examine and cross-examine any witness. It is to be noted that, by s 32(1), the grant of leave is conditioned by the recipient of leave having “a sufficient interest in the subject matter of the inquest”.

9 Accordingly, the grant of leave to be represented and to examine and cross-examine reinforced the inference that the claimant was at risk of being the subject of a s 19(1)(b) opinion.

10 In addition, the evidence forming part of “the brief of evidence” (which was sent to the claimant under cover of the letter of 19 February 2002) contained material, which if accepted, would give rise to a prima facie case that the claimant had committed an indictable offence relating to the death of Miss Gillard.

11 Accordingly, having regard to s 19(2), the claimant was a person whose interests might be adversely affected by the exercise of the Coroner’s powers under s 19. Therefore, the Coroner, in conducting the inquest, was obliged to exercise procedural fairness as regards the claimant: Annetts vMcCann (1990) 170 CLR 596, Maksimovich v Walsh (1985) 4 NSWLR 318 per Kirby P at 327 and Samuels JA at 337.

12 On the opening day of the inquest, counsel then appearing for the claimant learned that the police sergeant leading the evidence and the Coroner were in possession of evidence that had not been provided to the claimant. It is common ground that this evidence was material to the claimant’s interests. Counsel drew this to the attention of the Coroner.

13 The Coroner said that he would only consider whether he should make that material available when he came to consider whether he should form an opinion under s 19. He said that, as he had not reached that point, the claimant was not entitled to the material.

14 Later, that day, counsel for the claimant renewed his request for the additional material. The Coroner said:

“I’m not going to release any of the material that forms part of my brief at this stage until we get to the point where, if I am directing my mind in regard to s 19 in regard to your client …. I’ll provide you all that material so that you can address me on any issues that are relevant to s 19”.

15 On the second day of the inquest counsel for the claimant renewed his request for the material. The Coroner said:

“I do take on board that there may be certain prejudices associated with certain people of interest and that is the very nature of this matter and one has to remember that even though the inquest is being heard today we are into the third witness of a 38 witness list which is listed for 10 days and there are some reasons which I don’t think Sergeant Fordham has to disclose, nor do I have to disclose at this state [sic – stage], because of the fact that any homicide is a continuing investigation there are tactical reasons why certain witnesses are being called and certain evidence is not being fully made available to all witnesses and that’s all I’m prepared to say at this stage. I am mindful of course that if I am addressing my mind in relation to the possibility of any known person being considered under the provisions of s 19 in relation to the commission of an indictable offence in terms of procedural fairness all material that relates to that person be made available to legal representatives and as far as procedural fairness is concerned that will be given every opportunity to either recall witnesses or to cross-examine and to fully examine that material. I haven’t reached that point at this stage”.

16 The Coroner then adjourned the inquest to enable the claimant to apply for appropriate relief to the Supreme Court. The claimant sought a declaration before Hidden J that the Coroner had erred in law in refusing to allow him access to the material in question.

17 Hidden J noted:

“It is common ground that, before a Coroner determines that there is sufficient evidence that a person has committed an indictable offence to warrant proceeding under s 19, that person has a right to be heard on the matter. [Mr Johnson SC, senior counsel for the first opponent] acknowledged that that would entitle the person to have access to all the relevant material before the Coroner, to cross-examine witnesses at the inquest (and, presumably to produce further evidence), and to address the Coroner”.

As I have pointed out, the Coroner, himself, had stated that when he came to consider whether he should form a s 19 opinion concerning the claimant, the claimant would be given an opportunity to address him and he would then give the material now being withheld to the claimant.

18 Hidden J observed that the cardinal issue between the parties was :

“[A]t what stage the duty of the Coroner arises to make all relevant material available to that person”.

19 His Honour, while accepting that the rules of procedural fairness applied, expressed the view that:

“[I]t is open to a Coroner, in the interests of the integrity of the investigation of a death, to withhold material from such a person unless and until the rules of procedural fairness dictate its disclosure”.

20 The learned judge concluded that the reasons given by the Coroner for refusing to provide the withheld material to the claimant related to the “integrity of the investigation”. His Honour said:

“By his reference to ‘tactical reasons’ why some material was being withheld, I take the Coroner to have meant that he believed that the supply of the material at that stage might prejudice the ongoing investigation of the death of Miss Gillard”.

For that reason, Hidden J concluded that the Coroner’s reasons were sound and he dismissed the claimant’s summons. The claimant appeals against that dismissal.

21 Mr Johnson SC, senior counsel for the first opponent, supported the finding that the Coroner had refused to provide the material on the grounds that to do so would harm the integrity of the investigation. He also submitted that, in any event, procedural fairness did not require the claimant to be given the material so early in the inquest.

22 I turn, firstly, to the “integrity of the investigation” issue.

23 I understand “integrity of the investigation” to refer to matters such as the safety of witnesses, the preparedness of witnesses to testify and the ability of the police to find witnesses. Mr Johnson submitted that the Coroner’s reasons should be construed to mean that the withholding of the material would advance the investigation and revealing the material would retard the investigation.

24 There is nothing in the papers before this Court that suggests that the disclosure of the material in question would bear upon the integrity of the investigation, as I understand the phrase, and there is nothing that suggests that withholding the material would advance the investigation or revealing the material would retard it. The Coroner, himself, gave no indication whatever how disclosure might have effects of the kind postulated.

25 The investigation of the questions, the subject of the inquest, had been underway for more than four years. One would think that had there been any reason why the investigation would be prejudiced by revealing the information, some hint of the manner in which it would be prejudiced, and the reasons why this might occur, would be given. But this was not done.

26 The inquest was scheduled to last for ten days. As I have mentioned, both the Coroner and the first opponent accepted that, at some time before the conclusion of the tenth day, the material in question would be disclosed. Thus, the withholding of the material was to endure for not more than eight days. On the papers before the court, I am unable to conceive of any harm that could be done to the investigation if the material were to be disclosed within the eight day period.

27 The word “tactics” used by the Coroner to explain why the material should not be produced carries with it a strong flavour of forensic advantage. “Tactics” to my mind is a word that does not bear on the integrity of the investigation. It is a word that, in the present context, connotes a forensic benefit that might result from witnesses testifying without the claimant being able to question them about the withheld material.

28 In my opinion, the reasons given by the Coroner for refusing to produce the material cannot be construed as relating to the integrity of the investigation. I consider that the Coroner decided to withhold the material to achieve the forensic benefit to which I referred in the last paragraph.

29 Such a motivation for decisions made by a coroner in the course of an inquest was criticised by Kirby P in Maksimovich v Walsh at 328. In my view, it was not a sound basis for refusing to disclose the material.

30 I turn now to Mr Johnson’s submission that, in any event, procedural fairness does not require the documents to be disclosed at the current stage of the inquest.

31 I have had the benefit of reading in draft the reasons for judgment to be delivered by Young CJ in Eq. His Honour is of the same view as Hidden J in regard to the integrity of the investigation, but states:

“If I were not of that view, and if I were to agree with the submissions made for the plaintiff below that tactics referred to some forensic game in which it is thought that the employer of the tactics might get an advantage over another party then I would have thought that there was no way in which the Coroner’s decision could be supported”.

I infer from his Honour’s remarks that, were he to have found that the disclosure of the material would not have harmed the integrity of the investigation, he would have concluded that procedural fairness would have required the production of the material.

32 The requirements of natural justice are flexible and vary with the circumstances of the case: Kioa v West (1985) 159 CLR 550 at 584. The question is what content the rules of natural justice should have in the present circumstances.

33 Mr Johnson emphasised the investigatory nature of an inquest. Mr Basten SC, senior counsel for the claimant, emphasised the adversarial process inherent in an inquest. Courts have found it difficult to characterise the precise juristic nature of an inquest. For my part, I do not think it necessary to embark on that exercise. I think it sufficient to note, firstly, that it is a hybrid process containing both adversarial and inquisitorial elements. Secondly, coroners exercise judicial power, notwithstanding the executive nature of their functions. Thirdly, the proceedings in the Coroner’s Court involve the administration of justice: See R v South London Coroner, Ex Parte Thompson (1982) 126 SJ 625 (cited in Annetts v McCann at 616 by Toohey J), Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 826 per Adams J, Maksimovich v Walsh at 327-328 per Kirby P and 337 per Samuels JA, Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 at 6, Herron v Attorney General for NSW (1987) 8 NSWLR 601 per Kirby P at 608.

34 The nature of an inquest differs from that of a fundamentally investigatory process such as a Royal Commission. This means that authorities such as Mannah v State Drug Crime Commission (1987) 13 NSWLR 28, relied on by Mr Johnson, are not of application to this case. In Mannah Wood J held that natural justice did not entitle a witness to be informed in advance of the questions proposed to be asked, the use to which his answers or the documents might be put, or the relevance of the answers or documents. His Honour said that any such rule could effectively frustrate the investigation being carried out by the statutory predecessor to the New South Wales Crime Commission, since disclosure of such information might warn criminals involved in organised crime of the progress of investigations and provide them with a means of countering those inquiries (see at 39G to 40B). Considerations of this kind do not presently arise; certainly, there is no evidence of them.

35 The basic complaint of the complainant is that while the Coroner considered it necessary to give him leave to be represented by counsel and to examine and cross-examine witnesses, the Coroner’s decision has the practical effect of requiring the claimant to cross-examine on inadequate material. And in circumstances where the claimant is at risk of being the subject of a s 19(1)(b) opinion.

36 The withheld material appears to be, principally, certain telephone records. The inference is that these records have some bearing on the claimant’s involvement in the death of Miss Gillard. If that is correct it would be vital for the claimant to have possession of that information to be able to cross-examine witnesses. Mr Johnson has submitted that, if necessary, witnesses could be recalled. But I do not regard that as a satisfactory solution. There is no certainty that all the relevant witnesses will be found again after they have given evidence (there are 38 potential witnesses), and, in any event, forensically, the claimant might be seriously disadvantaged by having to cross-examine, initially, without the relevant material.

37 In Maksimovich v Walsh at 328 Kirby P said that if a point was reached in an inquest where, to deprive the person affected of the opportunity of properly defending himself, responding, seeking to call other evidence or otherwise to rebut the assertions contained in the report, “fair procedures … would require that copy of the report, or relevant extracts from it, [be] made available to the claimant”.

38 In my view, there is a clear inference that in the inquest into the death of Ms Gillard, such a point has been reached.

39 The disclosure at this stage of the material in question to the claimant, would not constitute the imposition of unreasonable requirements and undue burdens on the Coroner or the police; it would not detract from the efficiency and utility of the inquiry; further, in the particular circumstances of this case, I do not consider that any relevant harm would be done by the disclosure: Maksimovich v Walsh at 327-328.

40 In Minister for Immigration and Multicultural Affairs; Re Ex Parte Lam [2003] HCA 6 at [37] Gleeson CJ said:

“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”.

In my opinion, in the circumstances, there would be a practical injustice to the claimant arising out of the failure to disclose the information at this stage.

41 In the circumstances I would grant leave to appeal and direct the claimant to file in the registry of the Court within 48 hours a notice of appeal in the form of the draft that has been handed to the Court. I would uphold the appeal and set aside the judgment of Hidden J. I would order that, subject to any question of privilege or immunity, the Coroner, in continuing the inquest, supply to the claimant forthwith all material in his possession or in the possession of the sergeant assisting which relates to possible involvement of the claimant in the death of Pauline Elsie Anne Gillard. I would order the first opponent to pay the costs of the claimant of the appeal and of the proceedings in the court below.

42 YOUNG CJ in EQ: This is an appeal from Hidden J who dismissed a summons by which the plaintiff sought declarations that the second defendant, sitting as Deputy State Coroner, presiding over an inquest into the death of Pauline Gillard, erred in law in various respects.

43 The principal attack was that the Coroner erred in law in refusing to allow counsel for the plaintiff to see or have access to material in the Coroner's possession or in the possession of Sergeant Fordham assisting the Coroner which is relevant to the plaintiff.

44 Before the inquest commenced, the Clerk of the Court sent to the plaintiff a letter informing him that the inquest had been listed for hearing and "[y]ou will be called as a witness at the hearing and it may be in your interest to seek legal advice prior to that date, particularly having regard to the provisions of Section 19 and 33 of the Coroner's Act, 1980." The letter, of course, mentioned the date of the hearing.

45 It is useful at this stage to refer to some provisions of the Coroners Act 1980. Sections 22 and 22A provide that the coroner holding an inquest shall record findings as to (a) whether the person in question died; (b) the person's identity; (c) the date and place of the person's death; and (d) except where s 19 applies, the manner and cause of the person's death; and (e) may make recommendations.

46 Section 19, so far as is relevant, is as follows:

"19(1) This section applies if:
…
(b) at any time during the course of an inquest or inquiry, the coroner is of the opinion that, having regard to all the evidence given up to that time:
(i) the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, and
(ii) there is a reasonable prospect that a jury would convict the known person of the indictable offence,
and the indictable offence is one in which the question whether the … known person caused the death … is in issue.
(1B) If this section applies to an inquest as provided by subsection (1)(b), the Coroner may continue the inquest and:
(a) record under section 22(1) the findings of the coroner … or
(b) after taking the evidence to establish the death, the identity of the deceased and the date and place of death – terminate the inquest …
(2) The coroner is required to forward to the Director of Public Prosecutions the depositions taken at an inquest or inquiry to which this section applies together with a statement that is signed by the coroner and specifies … the name of the known person, and the particulars of the offence, so referred to."

47 The Act by s 31 requires witnesses to be examined on oath and s 32 provides that a person who has been given leave to appear may by counsel or a solicitor or in person, "examine and cross-examine any witnesses on any matters relevant to the inquest …". Section 33 is as follows:

"A coroner holding an inquest … shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law, but no witness shall, except in accordance with s 33AA, be compelled to answer any question which criminates the witness, or tends to criminate the witness, of any offence."

48 At the opening of the inquest, Mr Vasic of counsel sought leave to appear for the plaintiff and was granted that leave.

49 At page 3 of the transcript, Mr Vasic said that there may be some material which had not been served on him and which he had not seen which may have been of vital interest to his client. His Worship said:

"Well then there may be certain parts of that brief which have not been provided to all parties and I simply say this, that if I do turn my mind to s 19 at any stage I think I have a discretion there as to whether I make that material available in regard to any witnesses if I am considering s 19 and I think we cross that bridge later down the track."

50 The point came up at other times during the hearing. I should say that so far the hearing has only progressed to taking the evidence of two witnesses out of 38 who were said to be giving evidence at the inquest.

51 Perhaps the matter came to a head on the second day of hearing, pp 89-90 of the White Appeal Book, where Mr Vasic made a direct application for access and service of all material, as he felt without those, his client was being ambushed and this did not accord with the rules of procedural fairness or natural justice. The sergeant assisting the Coroner pointed out that Mr Vasic was representing a witness, not a defendant in a criminal proceeding, and said:

'"There are things which the witnesses must be alerted to, there are things however which, if we were to alert the witnesses to, it would defeat the purpose of the inquest and for those reasons sir I think it was quite proper not to disclose some information that wasn't relevant at the beginning of this inquest. I can understand my friend is concerned at what's contained here is new and it is something that he would need to take some time to get instructions on. …".

52 The debate took place in connection with whether a statement which hadn't been served should be admitted. The Coroner at pp 90-91 of the White Appeal Book, said:

"Well I do propose to allow it in because firstly I'm not a criminal court dealing with a charge against a known person in relation to an indictable offence. Clearly that statement would not possibly be admissible in criminal proceedings. It is admissible at an inquest because this is an inquiry to determine the manner and cause in relation to the death of Pauline Elise Ann Gillard and I'm not bound by the Rules of Evidence. I do take on board that there may be certain prejudices associated with certain people of interest and that is the very nature of this matter and one has to remember that even though the inquest is being heard today we are into the third witness of a 38 witness list which is listed for 10 days and there is some reasons which I don't think Sergeant Fordham has to disclose, nor do I have to disclose at this stage, because of the fact that any homicide is a continuing investigation there are tactical reasons why certain witnesses are being called and certain evidence is not being fully made available to all witnesses and that's all I'm prepared to say at this stage. I am mindful of course that if I am addressing my mind in relation to the possibility of any known person being considered under the provisions of section 19 in relation to the commission of an indictable offence in terms of procedural fairness all material that relates to that person be made available to legal representatives and as far as procedure fairness is concerned they will be given every opportunity to either recall witnesses or to cross-examine and to fully examine that material. I haven't reached that point at this stage."

53 The plaintiff then filed a summons which sought orders essentially as follows:

"2. A declaration that the Coroner … erred in law in refusing to allow counsel … for the Plaintiff to see or grant access to exhibit 2 which was marked 'Brief of Evidence'.
3. A declaration that the Coroner … erred in law in refusing to allow counsel for the Plaintiff to see or grant access to any other material in the Coroner's possession which is relevant to the Plaintiff."
4 to 6 were in similar vein.
7. Sought a declaration that induced statements taken via the provisions of the NSW Crime Commission Act were not admissible.

54 The matter came on for hearing before Hidden J on 26 April 2002 and his Honour gave his judgment on 17 May 2002. As I have said, he dismissed the summons.

55 His Honour said at [7] with reference to the passage from the utterances of the Coroner that I have already quoted:

"By his reference to 'tactical reasons' why some material was being withheld, I take the coroner to have meant that he believed that the supply of the material at that stage might prejudice the ongoing investigation of the death of Ms Gillard."

56 If I could pause here for a moment, that statement of his Honour's is one which he could reasonably have held and indeed, it is one which is suggested by the words in the submission of Sergeant Fordham that provision of the material would defeat the purpose of the inquest.

57 If I were not of that view, and if I were to agree with the submissions made for the plaintiff below that tactics referred to some forensic game in which it is thought that the employer of the tactics might get an advantage over another party then I would have thought that there was no way in which the Coroner's decision could be supported.

58 Although a coroner does in the course of an inquest wear a variety of hats, in holding the public hearing, he or she has to make a determination and make that determination on the evidence. It is true that there is neither plaintiff nor defendant before the court, and it is true that the person presenting the evidence is the officer or lawyer assisting the coroner and that "opposing" counsel appear for witnesses, not defendants, but even so, the coroner is basically an adjudicator and not a participant in the fray. He or she is not a person who should be involved in any way at all in forensic tactics.

59 If on the other hand, there is a legitimate reason regarding the integrity of the inquest for not disclosing the evidence, then different considerations would apply. It is quite legitimate for a coroner to protect the legitimacy of the inquest.

60 However, here too one must be careful. It is no part of the coroner's job to assist police investigations and the mere fact that police investigations may be embarrassed by material becoming available may not necessarily be a reason to hold back material because that has nothing to do with the integrity of the inquest.

61 It may be that if X has told his girlfriend that he couldn't have murdered Y on 13 March because he was at the pictures with Z, it may be legitimate to hold back Z's evidence that in fact he was at the pictures with X on 12 March. However, as it is conceded in the instant case that before X is called to elect whether he will take advantage of s 33 of the Coroners Act and decline to answer questions or give evidence, he must be given all material which would include Z's statement, this scenario cannot arise. At least it cannot arise at the time when X is being asked to give evidence. It may arise at some earlier time when X's counsel is cross-examining witnesses.

62 Towards the end of the argument it seemed that the Coroner may in fact have meant by the word "tactics" the obtaining of some advantage for the police investigation or the prosecution's case. Had that been established before the Judge or had it been the subject of the notice of appeal the result of this appeal may have been different. As I have said, that attitude would have been quite an extraneous factor for the Coroner to take into account. However, the Judge approached the matter on the basis that "tactics" meant something to do with the integrity of the inquest and there was nothing in the notice of appeal which challenged that view.

63 Accordingly, if, and only if, "tactics" is used in the sense of protecting the integrity of the inquiry, is it a legitimate reason for a coroner to withhold material from counsel appearing for a witness who would otherwise receive the material in the ordinary course of events.

64 However as I say, there is insufficient material to convince me that his Honour's statement in para [7] was wide of the mark and that the Coroner meant anything more than protecting the integrity of the inquiry.

65 His Honour said at [11], a point which is common ground before us, that the rules of procedural fairness apply to an inquest. His Honour proceeded:

"It is common ground that, before a coroner determines that there is sufficient evidence that a person has committed an indictable offence to warrant proceeding under s 19, that person has a right to be heard on the matter. Mr Johnson [counsel for the Attorney General] acknowledged that that would entitle the person to have access to all the relevant material before the coroner, to cross examine witnesses at the inquest (and, presumably, to produce further evidence), and to address the coroner. Where the parties are at issue is at what stage the duty of the coroner arises to make all relevant material available to that person."

66 His Honour then said at [18]:

"On what I know of the evidence in the present case there may well be a prima facie case against the plaintiff, but whether it is such as to meet the test set out in s 19(1)(b) is quite another matter. Questions of the credibility of witnesses may be important, and I can see every reason why the coroner should not consider any determination under the section until he has heard further evidence or, maybe, the whole of it. As he foreshadowed, should the matter arise, procedural fairness would be met by the provision of all relevant material to the plaintiff at some later stage, together with the opportunity for his counsel to have witnesses recalled, if necessary. I am mindful of the forensic disadvantage which the plaintiff might suffer from that course. In his written submissions Mr Stratton [then counsel for the plaintiff] refers to the desirability of a cross-examiner being able to frame questions with knowledge of the entirety of the evidence and, in particular, being aware of what other evidence is available either to support or to contradict the testimony of the witness to whom the cross examination is directed. He adds that the process of recalling witnesses is 'cumbersome, ineffective and unfair'."

67 In para [20] of the judgment, his Honour concluded:

"I accept Mr Johnson's further submission that it is open to a coroner, in the interests of the integrity of the investigation of a death, to withhold material from such a person unless and until the rules of procedural fairness dictate its disclosure."

68 At para 21 he said:

"It follows that I am not persuaded that the rules of procedural fairness require the disclosure to the plaintiff of all material relating to him at this stage of the inquest. The coroner has not been shown to have erred in law in adopting the course he has and, accordingly, the plaintiff's summons must be dismissed."

69 The notice of appeal did not seek to challenge the Judge's view that the Coroner had acted in the interests of the integrity of the investigation of a death. It merely alleged that the trial judge had erred that the Coroner could defer forming an opinion under s 19(1)(b) of the Coroners Act until particular evidence or the whole of the evidence had been given and that the tribunal could even after forming the opinion, continue to take evidence.

70 During discussion, Mr Basten QC who appeared with Mr Vasic for the claimant/plaintiff, indicated that the order he sought was:

"An order that the Coroner, in continuing the inquest, supply to the appellant forthwith all material in his possession or in the possession of the sergeant assisting which relates to possible involvement of the appellant in the death of Pauline Elsie Ann Gillard subject to any proper questions of immunity or privilege."

Such an order would be either in the nature of a mandamus or made under s 65 of the Supreme Court Act 1970.

71 Before dealing with the essential matters which need to be decided, I should digress to deal with the role of this Court in supervision of the activities of coroners.

72 The only special mention of this Court in the Coroners Act is in s 47 which basically provides that the Court may, in appropriate cases, set aside the result of an inquest and order a new inquest.

73 In John Fairfax & Sons Ltd v Gill (1988) 12 NSWLR 77 (an appeal from my decision in Gill v Glass, 17 December 1987, unreported), the Court of Appeal made it clear at p 80 that in connection with a coroner's decision whether or not to publish evidence the Court does not sit as a court of appeal, but the Court could only interfere with the coroner's decision where he has acceded or refused or misconceived the nature of his jurisdiction. Those remarks apply generally. Very wide discretions are given to coroners to conduct proceedings in accordance with the circumstances and exigencies of each particular case and this Court should not be over zealous in interfering with what the coroner does. In particular, the Court should not encourage applications which are likely to hold up an inquest in progress.

74 The trend of authority shows that courts are more ready to interfere in this century than they were prior to about 1980.

75 An illustration of this is Stanton v Abernathy (1990) 19 NSWLR 656, where the Court of Appeal granted declarations as to the defendant's rights on a committal hearing to have the charges properly particularised and the prosecutor elect against an information tainted by duplicity. See also Harrison v Pattison (1988) 14 ALD 570 where Bryson J made a declaration that in a disciplinary tribunal under the Education Commission Act 1980 it was not a proper restriction on cross-examination that the evidence should be directly related to the incidents referred to in the particulars of charge.

76 Furthermore, the remedy which used to be known as declaration of right became expanded so that the word "right" was used in a sense which is "wide and loose": Sankey v Whitlam (1978) 142 CLR 1, 23 so that it encompassed rights, privileges powers and immunities whether justiciable at law or not.

77 Notwithstanding this, a court when approached for a declaration in a case involving a current proceeding before a magistrate or a coroner must be careful in its discretion not to entertain all sorts and conditions of applications. Primarily, it should be concerned only with applications which tend to touch the jurisdiction of the magistrate or coroner rather than those matters which deal with matters of procedure within the court.

78 However, in the instant case, no objection was made to Hidden J entertaining the proceedings and no-one asked his Honour to dismiss the proceedings for want of jurisdiction or in his discretion.

79 Mr Basten QC says that in any event, the current proceedings did touch matters of jurisdiction because the applicability of principles of natural justice are a matter which would normally be dealt with by the court in the old days under the writ of common law prohibition.

80 The key question is whether the Coroner has denied natural justice to the plaintiff or whether there has been what I might term an anticipatory denial of natural justice.

81 A sub-question involves the proper construction of s 19 of the Coroners Act. Another sub-question, which was picked up by Hidden J in one of the passages which I have quoted, is that on the assumption (which is common ground between the parties) that at some time during the hearing before the Coroner all the material relevant to the plaintiff would have to be disclosed to him at what time has that disclosure to be made? The choices here appear to be:

(a) (as submitted by the plaintiff) at the commencement of the inquest by virtue of the plaintiff having been given the notice by the Coroner's office which fairly signalled he could be in jeopardy;

(b) at the time when the Coroner forms an opinion that he may be proceeding under s 19 of the Coroners Act ; or

(c) no later than when the claimant has to decide whether or not to claim privilege against testifying or answering particular questions.

There may be other possibilities. In each case it is understood that the material being referred to is not material which would be covered by public interest immunity or privilege.

82 On the wider question of natural justice, it is to be remembered that all courts and quasi judicial tribunals have an obligation to conduct fair hearings and to accord persons appearing before them natural justice.

83 However, it is also trite law that the content of the concept called "natural justice" is infinitely variable. As Tucker LJ said in Russell v Norfolk (Duke) [1949] 1 All ER 109, 118, a passage which has been cited constantly since; see eg per Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504:

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."

As Kitto J went on to say, after quoting that passage:

"What the law requires in a discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances."

See also McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54, 59-60.

84 The second general point to be made is that there is no point in a judicial or quasi-judicial hearing where the rules of natural justice do not apply. It is not correct to say that at some point the rules of natural justice crystallize and commence applying: they are always there. The requirement to observe the principles of natural justice exists throughout the whole hearing: however, the exact content of those principles may vary from time to time during the hearing.

85 It is common ground between the parties that in the instant case the principles of natural justice require the plaintiff to have all the material relevant to him at some point during the inquest. It is also conceded by Mr Johnson SC, who appeared with Mr Naylor for the Attorney General, that the time at which that material is to be available is no later than the time when the plaintiff is called as a witness.

86 Before directing my mind to the question of time, I should digress to look at the other sub-question, namely, the proper construction of s 19 of the Coroners Act.

87 I have already set out the section omitting immaterial parts.

88 The section in its then form was considered by this Court in Attorney General v Maksimovich (1985) 4 NSWLR 300.

89 The form of the section at that time required the Coroner as soon as the opinion mentioned in the section was formed, to terminate the inquest and forward the papers to the Attorney General. The tremendous problems that existed in complying literally with that provision were outlined in the judgment of McHugh JA at 316.

90 The reason for the present structure of the Act including provisions such as s 19 is examined in my judgment in Gill v Glass, supra, and has to do with the perceived unfairness in permitting a public declaration to be made by a coroner as to the guilt of a person who would later be put on trial, not on the material before the coroner which may well include a whole lot of inadmissible material, but rather on that evidence which was admissible in a court of law.

91 The Parliament subsequently made two very significant alterations to s 19. First, in 1989, s 19 was amended to permit the coroner to continue with his or her inquest, notwithstanding that the coroner had formed the statutory opinion. The purpose of that appears to be at least to permit the Crown authorities, previously the Attorney General and now the Director of Public Prosecutions, to have a good conspectus of the whole of the evidence when making a decision as to whether to prosecute the known person and also for the known person to encourage the coroner to call extra witnesses who may put a completely different tone to the evidence. Another purpose may be to permit the coroner to withdraw the opinion that he or she has formed.

92 In submissions before Hidden J, though only weakly repeated before us, counsel for the plaintiff put that the 1989 amendment really made no difference to the section as it was interpreted in Maksimovich's case. This submission is clearly wrong and must be rejected. The Parliament passed the amendment with the clear purpose of avoiding the problems illustrated by McHugh JA in his judgment.

93 The second set of amendments were to bring s 19 in line with s 41 of the Justices Act in its current form. The section as considered in Maksimovich required the coroner to address himself or herself as to whether there was a prima facie case. The section was amended so that the coroner must ask the questions:

(a) could a jury convict; and

(b) is there a reasonable prospect that a jury would convict.

Although the provision of s 41(8) of the Justices Act 1902 clarifying what is meant by "jury" as "reasonable jury properly instructed" does not occur in the Coroners Act , it seems to me that that clarification must be read into the words that are used.

94 I agree with Mr Johnson SC that this later amendment does involve the coroner having to be in a position to be able to evaluate the credibility of the evidence given in order to come to an opinion as to whether a reasonable jury properly instructed would be likely to convict the known person.

95 There was some debate before us as to what the word "opinion" meant and whether, if a coroner formed the statutory opinion, he or she could never withdraw it. Certainly the form of the original section makes one think that the opinion once formed was the end of the matter. However, the amendments make it a possible construction that the opinion once formed can be withdrawn.

96 The possible meanings of "opinion" in s 19 appear to me to be:

(a) the formation of a final view on a matter;

(b) the formation of a provisional view on the matter;

(c) a firm view on the evidence as at the time the opinion is formed; and

(d) a reasonable suspicion that a state of affairs would exist.

97 It seems to me that the flavour of the word "opinion" when used in connection with an opinion by a person or body which triggers a situation whereby a person may be liable to be prejudiced usually has the meaning of an informed decision; see eg Allcroft v London (Bishop) [1981] AC 666 and Bruce v Cole NSWCA, 12 June 1998, unreported.

98 In the 3rd edition of his Coronial Law and Practice in NSW (Butterworths, Sydney, 1994), p 54, Mr Kevin Waller, a former very experienced State Coroner, wrote in connection with s 19 and the first Maksimovich case:

"Coroners developed a practice of delaying consideration of whether a prima facie case existed until all or most of the evidence was in."

Indeed, it seems from reading some of the material that it was not at all uncommon for coroners deliberately to put out of their minds the question of forming the statutory opinion until late in the day so that the "flash of enlightenment" that could otherwise premature terminate the inquest would be avoided.

99 In the second Maksimovich case reported as Maksimovich v Walsh (1985) 4 NSWLR 318, 330, Kirby P said that:

"It is erroneous to assume that the decision called for by s 19 occurs, typically, in a flash of enlightenment."

His Honour then distinguished the formation of an opinion and a coroner alerting counsel that the moment was approaching when he or she might form an opinion and that his or her mind was already on the brink of an opinion which would attract s 19.

100 In the first Maksimovich case at 316, McHugh J said:

"The judgment may be formed during the evidence in chief of a witness or during his cross-examination and before the evidence is completed. Yet the proceedings must then be terminated. It matters not that the Coroner thinks that the witness is unreliable or that he knows other evidence is to be called which will incontrovertibly destroy the prima facie case …".

101 These passages tend to suggest that opinion means a final opinion, a serious deliberative application of the mind to the problem, and that once a final opinion has been formed, it is unalterable. However, as I have said, this latter view may have been correct in the section as it existed in 1985, but subsequent amendments have meant that it no longer applies.

102 It is the duty of a coroner under the Act at some stage to pose the question to himself or herself "Am I of the statutory opinion?" There is, however, no duty to formulate that at any particular stage of the proceedings. It may well be correct to follow the practical advice given by Mr Waller to leave the formation of that opinion until late in the proceedings, though there may be cases where the formation of the opinion becomes almost inevitable at a much earlier stage. It seems to me that the flavour of the word in its context is that it means final opinion rather than provisional opinion.

103 However, as Kirby P noted at p 330 in the second Maksimovich case, the obligation of a coroner to ensure that there is natural justice may mean that when he or she is on the verge of forming an opinion or has the possibility seriously in mind, at that stage the relevant material should be in the hands of the plaintiff.

104 Although I have some doubt about the matter, I consider that the view put by Mr Basten QC and not really attacked by Mr Johnson SC, that the opinion may be withdrawn even if it is formed, is the correct one. Once one realises that as soon as the question of forming the opinion might be being seriously considered comes about, the content of the obligation of natural justice will include supplying the person who could be the "known person" with all the relevant material and the effect of that person's conduct in the proceedings may either prevent the actual opinion from being formed, or if it is formed, from being withdrawn. I cannot see in the present shape of the section as opposed to its form in 1985 anything contrary to the smooth operation of the statute by taking that construction.

105 I now return to the question of the time at which the relevant material must be provided to the plaintiff or persons in his plight. To recap, the possibilities are that the material should be supplied at the commencement of the inquest, at the time when the opinion is formed (or there is a serious prospect of it being formed), or at the time when the person is to consider whether or not to object to giving evidence.

106 The first of these possibilities is strongly espoused by Mr Basten QC. He says that unless the material is made available at the start of the inquest, counsel will not be fully able to exercise the statutory right given in s 32 to cross-examine witnesses. He says he realises that the Coroner indicated that once the information was supplied it may well be possible to recall witnesses and to subject them to further cross-examination, but that this was unsatisfactory for a number of reasons. First, because there were 38 witnesses, if a number were to be recalled this would add greatly to the time and cost of the inquest. Secondly, there was no certainty with witnesses to an inquest over a possible homicide that even with the coroner's statutory powers to compel attendance witnesses would attend. Thirdly, the original cross-examination may have misfired because of lack of information and the only way in which the right to cross-examination could be properly protected was by having the material right from the beginning.

107 Mr Johnson SC played down these problems. He recognised that there would be some forensic disadvantage in a person not having the material earlier, but said that that needed to be weighed against all the circumstances of the inquest. He considered that the coroner's statutory powers to recall witnesses were sufficient and that it was a matter of balance. If the requirements of the investigation pointed in the direction of withholding material, then these factors may well in the coroner's mind outweigh any forensic prejudice.

108 I must confess that the idea that a person cannot effectively cross-examine a witness without having access to a large amount of material prima facie is unimpressive. Although today most cross-examiners do have access to a bulk of material before cross-examining witnesses in commercial cases, traditionally this was not so. Cases before a jury at common law or in the District Court and cases before a magistrate on oral evidence were presented with witnesses going into the box one by one, telling their tales, sometimes their oral evidence containing matters of which opposing counsel had not been aware of previously, and counsel then cross-examined. The great leaders of the bar were experts in drawing inferences from what was said or not said by the witness in framing cross-examination. Accordingly, I do not consider that merely because a cross-examiner does not have access to all the material that might be available that necessarily his or her cross-examination will be less effective.

109 Otherwise I adopt in general what Mr Johnson SC has put.

110 It seems to me that if there are no countervailing factors, then as it is conceded that natural justice requires that the plaintiff or a person in his plight should have the material at some stage during the inquest, if there are no countervailing considerations, the earlier the material is supplied is probably the better because this will counter any forensic prejudice and there will be no countervailing considerations.

111 However, I reject the view that in all cases, all the material must be provided to the "person in jeopardy" subject only to public interest immunity and privilege.

112 I have already said that it would be illegitimate for a coroner to conclude that it was a sufficient reason to withhold material (subject to public interest, immunity and privilege) on the basis of the mere fact that the police had told him or her that the police inquiry might be prejudiced if certain matters were known, or that there were some tactical reasons (in the usual sense of the term) for so doing. However, a coroner may well take the view that the material should be withheld pro tem because its early revelation might prejudice his or her inquiry.

113 Be that as it may, at the point when a coroner forms the s 19 opinion or more probably, at the point of time when he or she reaches the stage that such an opinion is being seriously considered, the prejudice to the plaintiff almost always will outweigh other considerations. Certainly that point will be reached when the plaintiff or a person in his plight is called upon to go into the witness box. Indeed, this is acknowledged by Mr Johnson SC.

114 In the present case, this has not yet occurred. The inquest is in its infancy.

115 I do not consider that the case is such that the orders now being sought by Mr Basten QC should be made. This is probably academic as the reasons of the members of this Court hopefully provide sufficient guidance to this Coroner and to others.

116 I should now turn my mind to formal matters and to questions of costs.

117 The present is an application for leave to appeal because of the nature of the hearing before Hidden J. In my view the case raises sufficiently serious questions of public interest for leave to appeal to be given. I would thus grant leave to appeal and direct that the draft notice of appeal be now filed within 48 hours of the delivery of these reasons. However, the appeal itself should be dismissed for the reasons that I have given.

118 As to costs, prima facie the claimant has failed and should pay the costs of the appeal. I have considered whether this is an exceptional case because had the relief being sought been more precisely defined in both the summons and the draft notice of appeal, and had some of the arguments that were presented to us been to the core of the matters argued on appeal, it should be said that the claimant did achieve some measure of success and that the guidelines laid down by the Court may in fact assist the Coroner at the resumed inquest. However, I do not consider that these are sufficient to outweigh the normal rule that costs follow the event.

119 Accordingly, in my view the following orders should be made:

1. Leave to appeal should be granted.

2. Direct the claimant to file in the registry of the Court within 48 hours a notice of appeal in the form of the draft that has been handed to the Court.

3. Appeal dismissed.

4. Order that the claimant/appellant pay the opponents/respondents’ costs of the appeal.

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Last Modified: 05/12/2003