Pearce v Coroner Olivia McTaggart
[2023] TASSC 37
•10 October 2023
[2023] TASSC 37
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Pearce v Coroner Olivia McTaggart [2023] TASSC 37 |
| PARTIES: | PEARCE, Robyn |
| v | |
| CORONER OLIVIA McTAGGART | |
| FILE NO: | 96/2023 |
| DELIVERED ON: | 10 October 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 31 July 2023 |
| JUDGMENT OF: | Geason J |
| CATCHWORDS: |
Evidence – Exclusions: privileges – Public interest privilege – Simultaneous WorkSafe investigation and coronial inquiry – Coroner seeking disclosure of evidence from WorkSafe investigation – WorkSafe claiming public interest privilege over certain evidence – WorkSafe seeking relief in nature of prohibition to restrain Coroner from taking possession of documents – Competing public interest considerations – Application of balancing exercise – Documents attract public interest privilege –
Coroner restrained from taking possession of documents.
Aust Dig Evidence [1190]
Sankey v Whitlam [1978] 142 CLR 1 at 39; Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404; DCL22
v Sage [2022] FCA 131 applied
Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) [2021] FCA 52
R v Tennent, ex parte Jager [2000] TASSC 64 referred to.
REPRESENTATION:
Counsel:
Appellant: M O'Farrell SC Respondent: L Mackey
Solicitors:
Appellant: Office of the Crown Solicitor Respondent: Ogilvie Jennings
| Judgment Number: | [2023] TASSC 37 |
| Number of paragraphs: | 41 |
Serial No 37/2023
File No 96/2023
ROBYN PEARCE v CORONER OLIVIA McTAGGART
| REASONS FOR JUDGMENT | GEASON J 10 October 2023 |
1 On 16 December 2021 six children were killed at Hillcrest Primary School in Devonport when a jumping castle was caught by a significant wind event and blown into the air ('the incident').
2 Investigations were commenced by Tasmania Police and WorkSafe Tasmania ("WST"). WST considered Tasmania Police to be the lead agency in the investigation, conducted cooperatively between the two. On 25 January 2023 WST's report into its investigation was completed and forwarded to the ODPP.
WorkSafe Tasmania and the Work health & Safety Act
3 The scope and emphasis of the WST investigation reflected its statutory function under the
Work Health and Safety Act 2012 (WHSA). Bradley Parker was the lead investigator for WST.
4 Robyn Pearce, the prosecutor in these proceedings, is the regulator appointed under the WHSA. She is the central administrator and law enforcement agent under the WHSA. Her role is to require compliance with the WHSA and to investigate and assist in prosecuting offences under that Act. She has the power to do all things necessary and convenient for the purposes of exercising her functions under the WHSA: s 153, including the power to obtain information in respect of possible contraventions of the WHSA: s 155.
5 Orders are sought by the prosecutor requiring the Defendant, the coroner appointed to
investigate the deaths which occurred on 16 December 2021, “to show cause why relief in the nature of
prohibition (quosque) should not be granted to restrain the defendants from taking a copy or possession of any of the documents held by the prosecutor listed in Schedule A of the Order to Show Cause,
whether pursuant to an authority under s 59 of the Coroners Act 1995 or otherwise”. Public interest
privilege is claimed in respect of those documents. That claim is a qualified one in the sense that it is maintained only until the expiration of the limitation period for prosecutions under the WHSA, or the conclusion of any criminal proceedings, which, properly advised, the Office of the Director of Public Prosecutions ("ODPP") may bring under that Act.
The role of the coroner
6 The coroner has jurisdiction to investigate deaths under s 21(1) of the Coroners Act. It is a function undertaken in the public interest.
7 Section 24(2) of that Act provides that the coroner may hold an inquest into a death within the coroner's jurisdiction, if the coroner considers it desirable to do so.
8 The coronial investigation is subject to statutory prescription. Section 28 of the Coroners Act
provides:
"Findings, &c., of coroner investigating a death
(1) A coroner investigating a death must find, if possible – (a) the identity of the deceased; and 2 No 37/2023
(b) how death occurred; and
(c) the cause of death; and
(d) when and where death occurred; and
(e)
the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1999 .
(f) . . . . . . . .
(2) A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate. (3) A coroner may comment on any matter connected with the death including
public health or safety or the administration of justice.(4) A coroner must not include in a finding or comment any statement that a person
is or may be guilty of an offence."
9 The functions of the coroner and the WST are discrete, and not complimentary. Section 28(4) of the Coroners Act, a prohibition on the coroner including a finding or comment to the effect that a person is or may be guilty of an offence, circumscribes the scope of the coronial function in a way which emphasises the coroner's function is not directed to the enforcement of legal obligations under the WHSA. Expeditious completion of the coronial investigation will not assist investigation and prosecution under the WHSA. In R v Tennent, ex parte Jager [2000] TASSC 64 at [4]-[6], Cox CJ identified the coronial function as one limited to defining facts so that in performing that function the coroner does not hinder the fair trial of a person for criminal liability arising from the investigated death.
The Inquest
10 An inquest was opened into the deaths pursuant to s 21 of the Coroner's Act. On 21 December 2021 a meeting was held involving the coroner, Tasmania Police and WST[1]. The minutes of that meeting record the coroner's desire to progress the coronial investigation expeditiously and note that if there is to be a prosecution "this will hold up the inquest". Shortly after that meeting a representative of WST advised a Tasmanian police representative that WST would require a notice under s 59 of the Coroners Act before it would share information collected in its investigation.
[1] Further meetings were held during the course of the investigation on 21 February, 12 April and 19 May 2022.11 Section 59 of the Coroners Act is the source of the coronial power to require production of the records of the WST investigation, and is in these terms:
"59 Powers of entry, inspection and possession
(1) A coroner who has jurisdiction to investigate a death, a fire or an explosion may,
with any assistance the coroner considers necessary –
(a) enter, with such force as is reasonable, and inspect any place and anything in it; and
(b) take a copy of any document relevant to the investigation; and
(c) take possession of any article, substance or thing which the coroner reasonably
believes is relevant to the investigation and keep it until the investigation is finished.3 No 37/2023
(2) A coroner may only exercise the powers under subsection (1) if the coroner
reasonably believes it is necessary for the investigation.(3) If a coroner reasonably believes it is necessary for the investigation, the coroner may, in writing, authorise a police officer or a person authorised by the coroner for the purposes of this section to exercise any one or more of the following powers:
(a) enter, with such force as is reasonable, a specified place;
(b) inspect a specified place and any article, substance or thing in it;
(c) take a copy of specified documents or classes of documents;
(d) take possession of specified articles, substances or things or classes of articles,
substances or things."
12 On 7 September 2022, the coroner issued a notice under s 59 requiring from WST the spreadsheet disclosing evidence collected to that date. On 21 September 2022, an employee of the coroner's office requested WST to provide a copy of the request to use the police report in the WST report. WST advised that the matter had not been progressed, its investigator stating he was awaiting instruction from the ODPP.
13 On 22 December 2022 the coroner issued a further s 59 notice authorising a police officer to attend WST premises to obtain the entire WST investigation files. Counsel assisting the coroner wrote to WST advising that the coroner would consider the disclosure of the WST material once it was received and she had heard the parties.
14 On 12 January 2023 counsel assisting the coroner wrote to the corporate secretary of WST intimating that its documents were required to allow the inquest to proceed, that the inquest should not be delayed, and that the s 59 notice was to be complied with.
Supreme Court proceedings
15 On 13 January 2023 the prosecutor applied to the Supreme Court for a general order requiring the defendant to show cause why a writ of prohibition should not issue to prevent the coroner from taking possession of certain documents contained in the WST file.
16 On 17 January 2023 Brett J made interim orders restraining the coroner from acting upon the s 59 notice she had issued on 22 December 2022. On 17 April 2023 his Honour made the General Order now returned for the purposes of the proceedings before this Court.
The Records
17 The following parts of the WST investigations are relevant for the purposes of these
proceedings[2]:
[2] From the prosecutor's written submissions
(a)
On 24 December 2021 a notice under s 155 (The "s 155 notice") of the WHSA was issued to the owner and operator of the jumping castle, RAG. On 14 February 2022, RAG responded to the notice with written answers.
(b)
On 21 February 2022 JB, a person who was assisting RAG on the day of the incident, was interviewed in person.
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(c) On 24 February 2022 RM, allegedly a joint owner and operator of the jumping castle, was interviewed in person. (d) On 7 April 2022, a s 155 notice was issued to RM. He responded to the notice on 13 May 2022. (e) On 23 May 2022 a s 155 notice was issued to the school's principal, JP. He responded to the notice on 9 June 2022. (f) On 23 May 2022 a s 155 notice was issued to a teacher responsible for organising the event, JLA. She responded to the notice on 20 June 2022. (g) On 1 July 2022, a second s 155 notice was issued to RAG. She responded to the notice on 14 July 2022. (h) On 30 March 2022 BSE (an engineering firm), was engaged to provide an expert report to WST. His report was provided to WST on 10 January 2023. It contains extracts of the interviews of a number of the people from whom evidence was gathered by WST. A redacted version of the report has subsequently been prepared. 18 The records identified as subject to the claim to public interest privilege are these:
1 Audio recordings of interview – witness JB witness RM 2 Video recording of interview - witness JB Written responses to s 155 Notice - witness RAG witness RAG (response questions) witness RM witness JP witness JLA 3 Interview transcripts - witness JB witness RM 4 Report - witness BSE (a business) 19 These records were gathered in the course of the WST investigation in the exercise of powers conferred upon it under the WHSA. As such, it is information subject to s 271 of that Act[3] and non- disclosure obligations. Those obligations do not preclude disclosure to the coroner: s 271(3)(d).
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Public Interest Privilege
20 Section 130 of the Evidence Act 2001, which creates a statutory public interest immunity, is of no application in these proceedings, because s 59 of the Coroners Act does not engage its operation and the coroner is not bound by the rules of evidence: Coroners Act 1995 s 51.
21 Accordingly, the matter falls to be determined according to common law principles:
"The applicable test is whether harm to the public interest could arise from disclosure as a matter of real possibility, as opposed to a matter of probability. This is because "the incurring of the identified risk [of harm] is itself injurious to the public interest": The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34; (2008) 36 WAR 83 at [46]; see also Conway v Rimmer [1968] UKHL 2; [1968] AC 910 (Conway v Rimmer) at 940, referred to with approval by Gibbs ACJ in Sankey v Whitlam at 39; Rogers v Home Department State Secretary [1973] AC 388 at 410E- F; Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405 at 434F; Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090 at 1143." Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) [2021] FCA 52 at [15]
22 The privilege is explained in Sankey v Whitlam [1978] 142 CLR 1 at 39. Gibbs ACJ said at 38
and 48:
"The general rule is that the Court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [1973] AC 388 at pages 400 and 406-407 and 412 as follows:
'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice to be done.'
It is in all cases the duty of the Court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The Court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a Court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the Court must waive the one competing aspect of the public interest against the other, and decide where the balance lies."
23 The required steps were identified in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 by Gibbs CJ at 412. His honour said:
"… when one party to litigation seeks the production of documents, and objection is taken that
it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.
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24 In Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) above, Abraham J restated this
approach:
[11] Whether a claim of public interest immunity ought to be upheld requires the Court to consider two conflicting aspects of the public interest: first, whether harm would be done by the disclosure of matters of state; and second, whether the proper administration of justice would be frustrated or impaired if the documents were withheld. If it appears that both aspects of public interest require consideration, the final step is a balancing exercise of those interests.
25 Each of the cases makes clear that the balancing exercise is required only in cases where both public interest claims require consideration.
Confidentiality
26 In Sankey (above) Gibbs ACJ observed that "Confidentiality is not a separate head of privilege, but may be a material consideration to bear in mind when privilege is claimed on the ground of public interest" citing Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners [No. 2] (citation omitted).
27 The defendant submits that at least some, perhaps all of the documents have lost their confidential status. Those records comprise the evidence of witnesses common to both investigations.
28 This is a speculative submission based on inference since the documents have not been inspected by the defendant.
29 The fact that the witnesses JB, RM, JP and JLA have provided statements to police as well as WHS is not determinative of the question of confidentiality. On the basis of the evidence in the affidavit of Bradley Parker (sworn 18 July 2023) which evidence is unchallenged, I am satisfied that the WHS investigation gathered additional and different detail from those witnesses. That is explicable on the basis that the two investigations had a different focus. I am persuaded too by the fact that the police investigation was conducted at a time when there was limited understanding of the incident, shortly after it occurred, and when it is reasonable to conclude witnesses were likely "to have been in heightened emotional states"(Affidavit of Bradley Parker sworn 18 July 2023).
30 It is submitted too that confidentiality is lost in consequence of the collaborative nature of the investigation, as between police and WHS. (I will assume this is a discrete point from that I have referred to in the preceding paragraph). This result does not necessarily follow and there is no evidence to suggest disclosure of the subject records has occurred between the two entities. For completeness I observe that the collaborative nature of the investigation does not affect the status of the WHS records under s 271 of the WHSA.
31 Nor do I accept the defendant's further contention that the absence of a belief in or assurances of confidentiality to interviewees is material. In any event, as I have said, s 271 imbues the records with a confidential status, having been procured in the exercise of a power or function under the WHSA.
32 I reject the Defendant's contention that the records are not confidential.
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The public interest in this case
33 The prosecutor articulates a public interest in ensuring the efficacious completion of the WST investigation and the avoidance of a result which compromises any prosecution by the ODPP. Mr Parker's concern is that disclosure of the records to the coroner at this stage, may lead to the contamination of evidence gathered for potential criminal prosecutions, and to the conducting of supplementary investigations that may be required in consequence of the further consideration of the matter by the ODPP.
34 The defendant rejects this and submits that the prosecutor's public interest claim is vague and
imprecise.
35 I consider that the risk identified by the prosecutor is easily understood, and sufficiently articulated. Experience shows that an investigative process may be compromised by the disclosure of evidence to witnesses and third parties prior to the conclusion of an investigation or before the commencement of proceedings. Though the WST investigation has been completed to the point where materials have been referred to the ODPP, typically further evidence gathering is required upon consideration of the material by the prosecuting agency. In a complex matter such as this that is likely.
I accept Mr Parker’s contention that it is prudent to perform the enforcement function "without alerting
suspects, contaminating witnesses, or closing off potential lines of investigation."
36 To establish public interest in support of its claim, the prosecutor need only establish that
"…harm to the public interest could arise from disclosure as a matter of real possibility, as opposed to
as a matter of probability.": DCL22 v Sage [2022] FCA 131 at [28].
37 I am satisfied that disclosure of the identified records to the coroner could impede the ability of WHS, and the ODPP in turn, to fulfil its function of effectively investigating possible offences and in appropriate cases instituting and prosecuting breaches of the WHSA. There is a real possibility that "harm to the public interest could arise from disclosure": DCL22 (above).
The balancing exercise
38 Two competing public interests are demonstrated: public interest in the completion of the coronial investigation in order that the matters identified in s 28 of the Coroners Act can be determined, including, the making of recommendations or comments under ss 28(2) or (3); and the public interest in facilitating the prosecutor's enforcement functions under the WHSA.
39 Disclosure to the coroner of the identified records has the potential to defeat the investigative/prosecutorial processes and functions which are underway. Non-disclosure of the records to the coroner, merely delays but does not defeat a coronial investigation. The prosecutor's claim must therefore prevail over the coroner's claim to the records at this time.
40 The First Respondent has failed to show cause why the relief sought by the prosecutor should not be granted; the documents listed in Schedule A of the application attract public interest privilege and are immune from production to the defendants whether pursuant to an authority issued under s 59 of the Coroners Act 1995 or otherwise, until the expiration of the limitation period for prosecutions under the WHSA, or the conclusion of any criminal proceedings, brought under WHSA by the office of the Director of Public Prosecutions.
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Order
41 The defendant is restrained from taking a copy or possession of any document held by the prosecutor listed in Schedule A of the Order to Show Cause, whether pursuant to an authority under s 59 of the Coroners Act 1995 or otherwise, until the expiration of the limitation period for prosecutions under the WHSA, or the conclusion of any criminal proceedings, brought under WHSA by the Office of the Director of Public Prosecutions.
(1) This section applies if a person obtains information or gains access to a document in exercising any power or function
under this Act (other than under Part 7 ).
(2) The person must not do any of the following:
(a) disclose to anyone else –
(i) the information; or
(ii) the contents of or information contained in the document;
(b) give access to the document to anyone else;
(c) use the information or document for any purpose.
Penalty: In the case of –
(a) an individual, a fine not exceeding $10 000; or
(b) a body corporate, a fine not exceeding $50 000.
(3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of
information or a document –
(a) about a person, with the person's consent; or
(b) that is necessary for the exercise of a power or function under this Act; or
(c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the
disclosure, access or use –
(i) is necessary for administering, or monitoring or enforcing compliance with, this Act; or
(ii) is necessary for the administration or enforcement of another Act prescribed by the regulations; or
(iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary
to lessen or prevent a serious risk to public health or safety; or
(iv) is necessary for the recognition of authorisations under a corresponding WHS law; or
(v) is required for the exercise of a power or function under a corresponding WHS law; or
(d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents
or the answering of questions; or
(e) that is required or authorised under a law; or
(f) to a Minister.
(4) A person must not intentionally disclose to another person the name of an individual who has made a complaint in
relation to that other person unless –
(a) the disclosure is made with the consent of the complainant; or
(b) the disclosure is required under a law.
Penalty: In the case of –
(a) an individual, a fine not exceeding $10 000; or
(b) a body corporate, a fine not exceeding $50 000.
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