“Officer A”, a pseudonym v State Coroner of New South Wales

[2024] NSWSC 1531

Supreme Court

New South Wales

Medium Neutral Citation:

“Officer A”, a pseudonym v State Coroner of New South Wales [2024] NSWSC 1531

Hearing dates:

29 November 2024

Date of orders:

29 November 2024

Decision date:

29 November 2024

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Declare that the State Coroner has power to exercise jurisdiction in relation to the application filed by the applicant on 2 October 2024 in the Coroner’s Court.

(2) An order in the nature of a writ of mandamus that the State Coroner exercise jurisdiction in relation to the application filed by the applicant on 2 October 2024 in the Coroner’s Court.

(3) Grant liberty to the plaintiff to restore the matter on short notice.

(4) No order as to costs such that each party is to pay his or its own costs.

Catchwords:

ADMINISTRATIVE LAW – Where plaintiff the subject of a pseudonym order made by the State Coroner during coronial inquest into the deaths arising from the Lindt café siege – Where plaintiff has applied to the Coroner’s Court for an order discharging the pseudonym order and where the State Coroner considers that she does not have power to do so – Where plaintiff seeks to challenge that holding – Jurisdictional error in failing to exercise jurisdiction established – Order in the nature of a writ of mandamus that the State Coroner exercise jurisdiction issued

Legislation Cited:

Coroners Act 2009 (NSW)

Interpretation Act 1987 (NSW)

Supreme Court Act 1970 (NSW)

Cases Cited:

Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297

Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 820

John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324

John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435

Rinehart v Welker [2011] NSWCA 403

Category:

Principal judgment

Parties:

“Officer A”, a pseudonym (Plaintiff)
State Coroner of New South Wales (Defendant)
Attorney General of NSW (as amicus curiae)

Representation:

Counsel:
M Lewis SC / A Poukchanski (Plaintiff)
D Kell SC / C Raad (Attorney General of NSW)
R Lee (NSW Commissioner of Police)

Solicitors:
Addisons (Plaintiff)
NSW Crown Solicitor’s Office (Attorney General of NSW and NSW Commissioner of Police)

File Number(s):

2024/00443428

Publication restriction:

Nil

EX TEMPORE JUDGMENT

Introduction

1. To many Sydneysiders, the Lindt Café siege is etched in their memory.

2. One of the persons involved in the events of that evening was a police officer, known by the pseudonym ‘Officer A’: he was a member of the Tactical Operations Unit, and part of the team that stormed the café at 2:13am on 16 December 2014.

3. An inquest was conducted by the NSW State Coroner, known as the ‘Inquest into the deaths arising from the Lindt Café siege’ (‘the Inquest’). On 8 January 2016, in the course of conducting that inquest, the State Coroner, under s 74(1)(b) of the Coroners Act 2009 (NSW) (‘the Act’), “[u]ntil further order”, made a non-publication order and, further, an order requiring the police officer to “be referred to as ‘Officer A’”. A further order, to the same broad effect, was made on 13 July 2016.

4. The inquest concluded many years ago. The findings of the State Coroner were handed down on 24 May 2017. Given the time elapsed, as well as for other reasons personal to Officer A’s circumstances, he no longer wishes to be known in connection with these events by that description. He wants to use his name.

5. Adopting the not unreasonable position that he considered himself to be bound by an order of the Coroner’s Court, Officer A approached that Court, as long ago as 2023, seeking to have that order discharged. By this time, the State Coroner had retired. Officer A applied to the current State Coroner, but this application was refused: Officer A was advised by email sent from the Registrar of that Court that “… the State Coroner is not presently satisfied that she has the power to vary any orders made in… the Inquest”.

6. The position reached is this: an order was made under s 74(1)(b) of the Act – in effect, a pseudonym order – in connection with the coronial inquest which is now completed. The order was expressed as “[u]ntil further order”. Officer A seeks to have that order discharged, but the Court that made that order considers it beyond its powers to do this.

7. The matter has been dealt with on an urgent basis for a range of reasons, including that the ability for Officer A to openly discuss the events of 16 December 2014 is not only important to him, but would assist in his ongoing therapy and treatment for an entrenched psychological condition from which he suffers arising from his employment, and in particular, his involvement in the siege. There is also scheduled to be an airing of a television program about the siege and Officer A’s involvement in it on 1 December 2024 (affidavit of Justine Munsie sworn 28 November 2024, par 13).

8. The plaintiff, by summons dated 28 November 2024, challenges the State Coroner’s holding and seeks, pursuant to s 69 of the Supreme Court Act 1970 (NSW), orders quashing the orders made by the Coroner’s Court on 8 January and 13 July 2016 or, in the alternative, declaratory relief and an order in the nature of a writ of mandamus.

9. A submitting appearance has been filed on behalf of that Court.

10. The Crown Solicitor, who acts for the Commissioner of Police, indicated, in correspondence directed to the State Coroner dated 17 October 2024, that the Commissioner neither opposes nor consents to the discharge of the orders. Mr Lee, who appeared for the Commissioner, confirmed that position today.

11. The Attorney General of New South Wales was granted leave to intervene, and the Crown Advocate, Dr DT Kell SC, provided very helpful submissions.

Background

12. It is necessary to sketch some matters of background. I will do this across two parts: first, the orders made by the Coroner’s Court; and, secondly, the steps taken by Officer A to have those orders discharged, and the responses received.

The orders of the Coroner’s Court

13. In the course of the Inquest, the State Coroner relevantly made orders on 8 January and 13 July 2016 affecting the plaintiff’s ability to disclose his identity in connection with his involvement in the siege.

14. The orders made on 8 January 2016 were:

1. Until further order, pursuant to s. 74(1)(b) of the Coroners Act 2009 (NSW), and as to any evidence in this inquest:

(a)  there be no publication of anything that would tend to identify the client of Mr Ken Madden of Walter Madden Jenkins, an officer of the Tactical Operations Unit of the New South Wales Police Force, including photographs, drawings or other likenesses; and

(b)  the individual referred to in (1)(a) be referred to as ‘Officer A’, including within the coronial brief of evidence and any other documents that are served on, or made available to, the parties in this inquest.

15. In relation to these orders, three matters should be noted. First, at the Inquest, the plaintiff was represented by Mr Ken Madden of Walter Madden Jenkins: he is “the client” referred to in order 1(a). Secondly, following the making of them, the plaintiff was referred to throughout the Inquest and in the findings of the Coroner as ‘Officer A’. Thirdly, the order in par 1(b) is, in substance, a pseudonym order.

16. The order (relevantly) made on 13 July 2016 was:

7. There shall be no disclosure beyond the Court and those persons listed in Schedule B, the Commissioner and the Commonwealth, of the name, physical likeness or any other information that would tend to reveal the identity of any NSW police officer who is currently attached, and/or was attached as at 15 and 16 December 2014, to the following groups, units of the NSW Police Force or individuals specified below (referred to in these orders as a “Category 1 witness”):

7.1 the Tactical Operations Unit (“TOU”)…

17. In relation to this order, two matters should be noted. First, at the time the order was made, the plaintiff was “currently attached” to the Tactical Operations Unit. The order thus operates to prohibit the disclosure “of the name, physical likeness or any other information that would tend to reveal the identity” of the plaintiff. Secondly, these orders form part of a broader suite of non-publication style orders made by the State Coroner on that day.

The plaintiff’s attempts to have the order discharged

18. On 2 October 2024, the plaintiff’s solicitor, by email to the registry of the Coroner’s Court, filed an application on behalf of the plaintiff seeking a variation to the non-publication orders made by the State Coroner. The orders sought by the plaintiff were that:

1. The matter is reopened for the purpose of considering the application;

2. Order 1 of the orders made by the State Coroner on 8 January 2016 is revoked;

3. Order 7 of the orders made by the State Coroner on 13 July 2016 be varied such that the plaintiff may reveal his identity and permit any other person to reveal his identity; and

4. Any further or other order as the Court thinks fit.

19. The application was supported by an affidavit of the plaintiff’s solicitor, Justine Munsie, sworn 1 October 2024. According to that affidavit, the plaintiff has “wanted for many years to speak publicly and openly about these matters” and that “[i]n his opinion, such public exposure will further assist in the treatment of his PTSD” (affidavit of Justine Munsie sworn 1 October 2024, par 16).

20. On that day, the Registrar of the Lidcombe Coroner’s Court confirmed receipt of the application and indicated that the documents had been provided to the State Coroner for her consideration.

21. On 3 October, 24 October, 11 November and 27 November 2024, the plaintiff’s solicitor followed up with the Registrar of the Coroner’s Court and requested that the material be brought to the State Coroner’s attention. On 24 October 2024, the plaintiff’s solicitor wrote to the Registrar referring to a letter from the Crown Solicitor’s Office dated 17 October 2024 advising that their client, the Commissioner of Police, neither opposes or consents to the application and does not wish to be heard. Noting the Commissioner’s position, the plaintiff’s solicitor requested that the application be dealt with ex parte and on the papers. However, if the State Coroner wished to hear from the plaintiff, his solicitors provided that Senior Counsel briefed in the matter was available to appear before her.

22. On 11 November 2024, a further affidavit was provided to the Coroner’s Court, annexing a letter from the plaintiff’s treating psychologist.

23. On 27 November 2024, the Registrar of the Coroner’s Court replied by email to the plaintiff’s solicitor, advising that “[a]s the Inquest has concluded and the previous State Coroner, Michael Barnes is now functus officio, the State Coroner is not presently satisfied that she has the power to vary any orders made in…the Inquest” and that the State Coroner “welcome[s] any submissions from you as to where you say the power comes from”.

The statutory scheme: the Coroners Act 2009 (NSW)

24. Part 3.2 of the Act confers “jurisdiction on coroners to hold inquests concerning certain deaths…”: s 17(1)(a). By Division 1 of that Part, general jurisdiction to hold inquests is conferred upon a coroner (s 21) and by Division 2 of that Part, which deals with certain deaths or suspected deaths (essentially, deaths in custody or as a result of police operations or deaths of children and disabled persons), exclusive jurisdiction is conferred upon a coroner holding the office of the State Coroner or Deputy State Coroner: ss 22-24.

25. Chapter 6 of the Act deals with coronial proceedings.

26. Coronial proceedings are, relevantly, any proceedings conducted by a coroner, or assistant coroner, for the purposes of the Act “concerning the investigation of a death”: s 46(1). Proceedings of that kind extend to include not only “the holding of an inquest or inquiry”, but to proceedings to determine whether or not to hold, or to continue to hold, them as well as “proceedings of an interlocutory or similar nature…”: ss 46(2)(a)-(c).

27. Hearings in coronial proceedings are generally to be open to the public, except as provided by ss 47 and 74: s 47(1). The exceptions provided for by s 47 are not immediately relevant, as they relate to circumstances where a coroner is of the opinion that “special circumstances make it necessary or desirable” to conduct coronial proceedings other than in a room or building that is open to the public: ss 47(2) and (3).

28. Part 6.2 of Chapter 6 concerns holding inquests and inquiries. Although a coroner is conducting an inquest and inquiry, in substance, they sit as a court (see Part 6.1 ‘General’ – which deals with the mechanics of coronial proceedings and, by way of example, includes references to “court” in s 47) – albeit, in conducting them, a coroner “is not bound to observe the rules of procedure and evidence that are applicable to proceedings before a court of law”: s 58(1).

29. Part 6.4 concerns disclosure of information in coronial proceedings.

30. Section 74 of the Act provides as follows:

74 Powers of coroner to clear court and prevent publication of evidence or submissions

(1)  A coroner in coronial proceedings may, if of the opinion that it would be in the public interest to do so, order—

(a)  any or all persons (including witnesses in the proceedings) to go and remain outside the room or building in which the proceedings are being heard, or

(b)  that any evidence given in the proceedings not be published, or

(c)  that any submissions made in the proceedings concerning whether a known person may have committed an indictable offence not be published.

(2)  For the purposes of subsection (1), the coroner may, in forming an opinion as to the public interest, have regard (without limitation) to the following matters—

(a)  the principle that coronial proceedings should generally be open to the public,

(b)  in the case of an order that is proposed to be made in relation to a witness in the proceedings—the likelihood that the evidence of the witness might be influenced by other evidence given in the proceedings if the witness is present when that other evidence is given,

(c)  national security,

(d)  the personal security of the public or any person.

(3)  A person must not contravene an order made under this section.

Maximum penalty—10 penalty units or imprisonment for 6 months (in the case of an individual) or 50 penalty units (in any other case).

31. It is important to note that s 73 defines “published”, as follows:

73   Meaning of “published”

For the purposes of this Part, matter is published only if it is—

(a)  inserted in any newspaper or any other periodical publication, or

(b)  publicly exhibited, or

(c)  broadcast by radio or by television, or

(d)  published by means of the Internet.

32. Section 75 of the Act deals with non-publication orders in coronial proceedings where a death, or suspected death, is self-inflicted: s 75(1). Although, by that section, the order is specifically described as a “non-publication order”, whereas an order under ss 74(1)(b) and (c) is not expressly described, in my view that textual difference does not suggest that the nature of the order is of a different character. The fact that s 74(3) also describes an order under s 74(1) merely as “an order made under this section” does not dictate a different conclusion: the evident purpose for the general expression in s 74(3) lies in the fact that there are different orders that can be made under s 74(1) – namely, an order that, in effect, closes the court (to “clear the court”) or an order that evidence or submissions “not be published”.

33. In relation to s 74, the following matters should presently be noted. First, s 74(1)(a) deals with the power of a coroner to “clear the court”, whereas ss 74(1)(b) and (c) concern material “in the proceedings” – either evidence given or submissions made – and their non-publication. In each situation, whether an order should be made turns upon the coroner being “of the opinion that it would be in the public interest” to make the order. Secondly, in forming an opinion as to whether it would be in the public interest to make an order under s 74(1), the coroner “may” have regard to the matters referred to in ss 74(2)(a)-(d). Thirdly, the order referred to in ss 74(1)(b) and (c), informed by s 73, is what might be described as a non-publication order: the “evidence given”, or “any submissions made” in the proceedings is an order that such a matter “not be published”. Fourthly, by its terms, the section does not empower a coroner to make a suppression order – that is, an order, in effect, preventing or restricting publication or disclosure of a particular matter covered by the order. (It is unnecessary on the current application to address this issue further, but it was accepted that there is such an implied power to do so: see John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 (‘Police Tribunal’) and Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 at [93]).

Consideration and disposition

34. The plaintiff advanced two alternative arguments to support the relief sought: put simply, there was a failure to exercise jurisdiction and the underlying orders were beyond power. The plaintiff also advanced a further argument, to the effect that this Court should exercise the power under s 23 of the Supreme Court Act to discharge the order.

The State Coroner failed to exercise jurisdiction

35. The plaintiff’s first argument was that the State Coroner erroneously concluded that she did not have power to make the orders sought and thus there was a failure to exercise jurisdiction and jurisdictional error. This occurred, the plaintiff argued, by the State Coroner advising that, in effect, as the former State Coroner had retired and was “now functus officio”, she had no power to vary any of the orders made “in the Inquest” and refused to deal with the plaintiff’s application.

36. In my view, there remained a power for the State Coroner to hear and determine the plaintiff’s application. That is because the State Coroner, by the terms of the order itself, expressly reserved the power to vary the order – “[u]ntil further order”. Given that the order was not expressed to be self-executing, that is limited in time, and in particular not limited to coincide with the making of findings and recommendations (ss 81 and 82), by its terms the order contemplates that it would or could be revisited at some future point.

37. The fact that an order was expressed in this way distinguishes it from the decision in Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 820, and in my view, answers any concern about whether the State Coroner was functus officio. There are other matters that served to distinguish that case as well, including that it concerned the making of a non-publication order following the conclusion of an inquest, as opposed to the situation here where a variation of a pre-existing order is sought to be made following an inquiry and report.

38. The fact that the (then) State Coroner had retired is not, in my view, a basis for the (current) State Coroner to decline to exercise the power. To the extent that this is not considered to be expressly within the functions of the State Coroner (as to which, see s 10), in my view, it must necessarily be implied from the express conferral of the coronial jurisdiction and the grant of power exercised by the State Coroner: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [24] (‘John Fairfax’). I consider that s 48 of the Interpretation Act 1987 (NSW), as Mr Lewis SC submitted, reinforces this conclusion.

35. Separately, there is a further way in which I consider that the State Coroner is not functus officio and it is independent of the introductory words in the order made on 8 January 2016. It is, I consider, clear that there is no express power to vary any order made under s 74(1) of the Act. However, a grant of power may be taken to carry with it everything necessary for its exercise (see Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at [50]), and the power to vary or discharge an order made under that section is necessarily implied from that express conferral: John Fairfax at [24]. Whilst the power to make an order under s 74(1) is conferred on a coroner “in coronial proceedings”, that does not, I consider, mandate that the power to vary that order must necessarily be so confined, and there are no textual indicators that stand against that construction. That is, there is nothing in the express terms of the Act which limits the implied power to vary the order to be “in coronial proceedings”. An outcome that restricts the variation (or discharge) of an order made under s 74 after a report and findings are made would restrict those exercising the coronial jurisdiction as a whole the ability to vary orders after that time in circumstances affecting the rights of individuals, as the Crown Advocate noted in submissions. In my view, the interpretation that permits the variation or discharge of orders more generally better achieves the purposes of the Act: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 320-321.

36. It follows, for each of these reasons, the State Coroner was not functus officio. The failure to exercise jurisdiction when it existed was a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41].

The orders were beyond power

41. The plaintiff’s second argument was that the order made by the State Coroner on 8 January 2016 was erroneous and not authorised by the terms of s 78 of the Act: the argument was that by including the words “[u]ntil further order”, the State Coroner acted beyond the power conferred by that section. The short point argued by Mr Lewis was that the order, to be regular, was required to have an end date, or otherwise be self-executing. The plaintiff called in aid, to buttress this argument, what was said in Rinehart v Welker [2011] NSWCA 403 at [28]-[31] (citing Police Tribunal at 476-477) and, in particular, that orders of this kind “must be clear in its terms and do no more than is necessary to achieve the due administration of justice”.

42. In the circumstances, I do not consider it necessary to resolve this argument, albeit that it is not without some difficulties given: (a) that the order was made at a time during the currency of the inquiry, and during its early stages; and (b) it was in those circumstances, not knowing how the inquiry would progress in the short term, that the order was made “until further order”.

43. I do not propose to deal with the final argument – namely that this Court should exercise the power via the engagement of s 23 of the Supreme Court Act. Given the matter is to be returned to the State Coroner to be dealt with in accordance with law, the repository of the power should exercise it, not this Court.

44. There is a final matter which should be noted. The plaintiff expressed a degree of concern about the length of time in which his application had been before the State Coroner. The initial contact was made, as I have earlier noted, in 2023. The Crown Advocate indicated, however, that he was instructed that the State Coroner was placed to deal with this application, depending upon the decision and orders of this Court, this afternoon. It is partly informed by this statement by the Crown Advocate that I have not addressed the s 23 argument.

Orders

45. For the above reasons, I make the following orders:

1. Declare that the State Coroner has power to exercise jurisdiction in relation to the application filed by the applicant on 2 October 2024 in the Coroner’s Court.

2. An order in the nature of a writ of mandamus that the State Coroner exercise jurisdiction in relation to the application filed by the applicant on 2 October 2024 in the Coroner’s Court.

3. Grant liberty to the plaintiff to restore the matter on short notice.

4. No order as to costs such that each party is to pay his or its own costs.

Decision last updated: 29 November 2024