Rich v Attorney General of New South Wales

[2013] NSWSC 877

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Rich v Attorney General of New South Wales & Ors [2013] NSWSC 877
Hearing dates:	19 June 2013
Decision date:	03 July 2013
Jurisdiction:	Common Law - Administrative Law
Before:	Barr AJ
Decision:	1.Summons Dismissed
Catchwords:	CORONER'S COURT - death occurring in course of police operations - police officer witness - privilege - exposure to penalty imposed other than by a court - objection to giving evidence - direction to give evidence - whether discretion miscarried
Legislation Cited:	Coroners Act 2009 Mental Health Act 2007 New South Wales Crime Commission Act 1985 Law Reform (Vicarious Liability) Act 1983 Police Regulations 2008
Cases Cited:	Attorney General of New South Wales v Borland [2007] NSWCA 201 Ballantyne v Workcover Authority of New South Wales (2007) 5 DDCR 97; [2007] NSWCA 239 House v The King (1936) 55 CLR 499 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 4 Minister for Immigration and Multicultural Affairs v Yusuf [2005] HCA 30; (2001) 206 CLR 323 SD v New South Wales Crime Commission [2013] NSWCA 48
Category:	Principal judgment
Parties:	Andrew Rich (Plaintiff) Attorney General of NSW (First Defendant) New South Wales State Coroner (Second Defendant) Jeremy Holcombe (Third Defendant)
Representation:	Counsel: M Thangaraj SC, B Haverfield (Plaintiff) N J Adams SC, B Baker (First Defendant) J Sheller, T Phillips (Third Defendant) Solicitors: Walter Madden Jenkins Solicitors (Plaintiff) Crown Solicitor's Office (First and Second Defendant) Sweeney Tiggemann Solicitors (Third Defendant)
File Number(s):	2013/109209
Decision under appeal	Date of Decision: 2013-04-05 00:00:00 Before: Magistrate M Jerram

Judgment

1. The plaintiff, Andrew Rich, is a serving police officer who was involved in a confrontation in which a young man died. The State Coroner held an inquest in the course of which the plaintiff was called to give evidence. He objected to doing so. After hearing argument the State Coroner required him to give evidence. By his Second Amended Summons, filed on 19 June 2013, the plaintiff seeks these orders-

1 An order prohibiting the Second Defendant from requiring the Plaintiff to give evidence at the coronial inquest into the death of Elijah Jay Holcombe.

2 A declaration that the Second Defendant erred in ruling that it was in the interests of justice to require the Plaintiff to give evidence at the coronial inquest into the death of Elijah Jay Holcombe.

3 A declaration that the Second Defendant erred in law in requiring the Plaintiff to give evidence at the coronial inquest being conducted by the Second Defendant into the death of Elijah Jay Holcombe.

3A An order quashing the direction of the Second Defendant made on 5 April 2013.

4 Costs.

1. The Attorney General of New South Wales, the first defendant, opposes the orders. The New South Wales State Coroner (the Coroner), Magistrate Mary Jerram, the second defendant, submits to the orders of the Court save as to costs. The third defendant, Jeremy Holcombe, the father of the young man, opposes the orders.

The Factual Background

1. The following account is extracted and adapted from the written submissions filed by the Attorney General. It is based on evidence given before the Coroner and I do not think that it is contentious. On 2 June 2009 Mr Elijah Holcombe, whom I shall call Elijah, died from injuries he received when he was shot by the plaintiff. The plaintiff was on duty as a police officer. Elijah was 24 years old and in the latter stages of an undergraduate degree at Macquarie University. He had suffered from depression since he was about 16 years old. Early in 2008 he began to experience persecutory delusions and paranoia. He spent time in hospital in that year and was treated with anti-psychotic drugs.

1. On 1 June 2009 Elijah's father travelled with him to Narrabri for a medical appointment. On the way Mr Holcombe stopped to do some errands, leaving Elijah alone in the car. He drove off in the car without his father's permission. His father went to Narrabri police station and reported that his son was missing. He told the police that his son was suffering from paranoid delusions, that he was afraid of police and that he would probably run if confronted by police. He told them that he was not alleging that his son had stolen his car, that he was just informing them that his son was missing and had taken his car. He also told the police that his son would not hurt anybody.

1. Messages were broadcast over police radio. They included information that Elijah suffered from mental health problems and was frightened of police. The messages also suggested that the police should use caution as there were concerns that he might run from the police.

1. At about midday on 2 June 2009 Elijah walked into Armidale police station and said that he had taken his father's car. He told the police the general area in which the car could be found and handed over the keys. He asked to be taken to hospital. A police officer took him to Armidale Rural Hospital. He was seen there by a nurse in the Emergency Department. He asked whether he were a voluntary patient and when he was informed that he was he left the hospital.

1. The plaintiff and his follow officer Senior Constable Dufty had been charged with finding the missing car. They were unable to do so and, after speaking to other police officers, went to the hospital. The plaintiff spoke to a nurse, who confirmed that Elijah had left the hospital. She indicated concern about him and asked whether the police could bring him back if they found him. The same nurse told the Coroner that no certificate under s 16 Mental Health Act 2007 had been issued concerning Elijah. It would follow that the police had no right to take him back to the hospital without his consent.

1. Not long after leaving the hospital the plaintiff saw Elijah in the street. The plaintiff approached him, held out the car keys and told him to come and get them. Elijah asked the plaintiff to throw him the keys. The plaintiff said words to the effect of "No, you come and get them from me". Elijah ran away. The plaintiff pursued him on foot through the streets. Elijah picked up a large bread knife from a café kitchen. The pursuit ended at Cinders Lane, Armidale. Accounts of the precise course of events there differ. However, it is clear that the plaintiff drew his firearm and fired at Elijah. He sustained gunshot wounds to the chest and died from his injuries.

1. As he was obliged to by Police Regulations 2008, the plaintiff took part in directed interviews on 3 June and 11 November 2009. On 4 June 2009 he took part in an "walk-through" interview at and near the place of the shooting. He said that he had repeatedly called on Elijah to drop the knife, that Elijah had not done so but had "roared" and run at him and that he, the plaintiff, had fired because he thought that he was going to be stabbed and out of his concern for others. See the transcripts of the interview of 3 June 2009 at p 42 and of 4 June 2009 at p 17.

1. An inquest was required to be heard because Elijah died as a result of or in the course of police operations: Coroners Act 2009 ss 23(d), 27 (1)(b) (the Act). The inquest began on 11 October 2010. The Coroner presided. On 29 October 2010 her Honour suspended the inquest under the provisions of s 78 (3) (b) of the Act. The power to do so arose when her Honour formed the opinion that the evidence was capable of satisfying a jury beyond reasonable doubt that a known person had committed an indictable offence, that there was a reasonable prospect that a jury would convict the known person of the indictable offence and that the indictable offence would raise the issue of whether the known person had caused the death with which the inquest was concerned: subs (1)(b).

1. In those circumstances her Honour was required to forward to the Director of Public Prosecutions (the Director) the depositions and a signed statement specifying the name of the known person and particulars of the indictable offence concerned: subs (4). Her Honour complied with subs (4).

1. As was appropriate, her Honour did not name the "known person" in open Court, but it was common ground that that person was the plaintiff. It was also generally understood that in referring the matter to the Director her Honour must have concluded that the evidence was capable of leading a jury to reject a defence of self-defence.

1. In 2011 members of Elijah's family instituted civil proceedings against the police seeking damages. They alleged that the shooting was unlawful and was the result of intentional or negligent acts. Particulars of unlawful conduct included-

Constable Rich did not reasonably believe that it was necessary to shoot Elijah for the purpose of defending himself or another person;

There was no reasonable possibility that Constable Rich's response was a reasonable response to the circumstances as he perceived them;

Constable Rich was not acting in self-defence.

1. The action is a police tort claim as that expression is defined in s 9B Law Reform (Vicarious Liability) Act 1983. By subs (2) a plaintiff may not sue the police officer concerned but may sue the Crown. By subs (3) the plaintiff may join the police officer concerned only if the Crown denies that it would be vicariously liable if it were established that the officer had committed the tort.

1. The Crown has not denied vicarious liability for any act of the plaintiff. However, the Law Reform (Vicarious Liability) Act permits it to do so. Sections 9C and 9D prescribe the procedure to be followed if it does.

1. On 28 August 2012 the Director wrote to the plaintiff and Elijah's family advising that he had determined not to commence proceedings against the plaintiff for murder, manslaughter or any other criminal offence arising out of Elijah's death. In his letter to Elijah's family the Director further advised that it was his view that there were no reasonable prospects of the Crown proving beyond reasonable doubt that the plaintiff's response was not a reasonable one in the circumstances as he perceived them.

1. Following the Director's determination, her Honour resumed the inquest pursuant to s 79 of the Act. The hearing resumed on 25 March 2013.

1. On resumption Senior Counsel assisting the Coroner identified four matters remaining for determination, viz:

(a) Why the plaintiff and Senior Constable Dufty pursued Mr Holcombe;

(b) To what extent Mr Holcombe's picking up the knife changed the course of events;

(c) To what extent the discharge of the plaintiff's firearm was a last resort and "otherwise within police training and directions"; and

(d) What, if anything, might have been done to achieve another and better result, particularly in view of the state of Mr Holcombe's mental health.

1. The evidence continued. Senior Constable Dufty, who had accompanied the plaintiff shortly before his firearm was discharged, but who was not present when it was, and Senior Sergeant Peter Davis, a witness with expertise in the use of force by police, gave evidence. After Senior Sergeant Davis' evidence Counsel for the Holcombe family requested her Honour again to refer the papers to the Director. Her Honour heard argument about that and declined to refer the papers.

1. On 25 March 2013 the plaintiff was called to give evidence. He told the Court his name, rank and station. He was asked whether he objected to giving evidence and he said that he did. He later said that he objected to giving evidence on the ground that the evidence might tend to prove that he had committed an offence against or arising under an Australian law, or that he was liable to a civil penalty. He also stated that he was not prepared to give evidence willingly if granted a certificate under s 61 of the Act.

1. The sections of the Act relevant for present purposes are these-

58 Rules of procedure and evidence

...

(2) Except as otherwise provided by this Act, a witness in coronial proceedings who is a natural person cannot be compelled to answer any question or produce any document that might tend:

(a) to incriminate the witness for an offence against or arising under an Australian law or a law of a foreign country, or

(b) to make the witness liable to a civil penalty.

61 Privilege in respect of self-incrimination

(1) This section applies if a witness in coronial proceedings objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b) is liable to a civil penalty.

(2) The coroner in the coronial proceedings must determine whether or not there are reasonable grounds for the objection.

(3) If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness:

(a) that the witness need not give the evidence unless required by the coroner to do so under subsection (4), and

(b) that the coroner will give a certificate under this section if:

(i) the witness willingly gives the evidence without being required to do so under subsection (4), or

(ii) the witness gives the evidence after being required to do so under subsection (4), and

(c) of the effect of such a certificate.

(4) The coroner may require the witness to give the evidence if the coroner is satisfied that:

(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(b) the interests of justice require that the witness give the evidence.

(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the coroner must cause the witness to be given a certificate under this section in respect of the evidence.

(6) The coroner is also to cause a witness to be given a certificate under this section if:

(a) the objection has been overruled, and

(b) after the evidence has been given, the coroner finds that there were reasonable grounds for the objection.

(7) In any proceeding in a NSW court within the meaning of the Evidence Act 1995 or before any person or body authorised by a law of the State, or by consent of parties, to hear, receive and examine evidence:

(a) evidence given by a person in respect of which a certificate under this section has been given, and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

(9) A reference in this section to doing an act includes a reference to failing to act.

(10) A certificate under this section can only be given in respect of evidence that is required to be given by a natural person.

1. Her Honour received oral and written submissions from the parties on the question whether it were in the interests of justice to require the plaintiff to give evidence pursuant to s 61. The plaintiff and the Commissioner of Police each contended that it was not in the interests of justice. Counsel assisting the Coroner and counsel for the family of Elijah each contended that it was in the interests of justice for the plaintiff to be required to give evidence.

1. On 5 April 2013 her Honour delivered a judgment in writing as follows -

1. An objection has been taken under s 61 of the Coroners Act 2009 ("the Act") by Senior Constable Rich to giving evidence in proceedings concerning the death of Elijah Holcombe at Armidale on June 2, 2009. Senior Constable Rich has been called to give evidence at the further hearing of this inquest. I resumed the inquest following a decision of the DPP not to commence any proceedings against Senior Constable Rich for any criminal offence arising from Elijah's death. The inquest had been suspended on October 29, 2010 and referred to the DPP under s 78(1 )(b) of the Act.

2. I am satisfied that there are reasonable grounds for the objection and that the witness has been properly informed according to s 61(3) of the Act. Senior Constable Rich has indicated that he will not give the evidence willingly under the protection of a certificate granted pursuant to s 61.

3. Mr Thangaraj SC for the Senior Constable, and Mr Saidi for the Commissioner of Police submit that Senior Constable Rich should not be so compelled. Mr Shelter for the family of Elijah Holcombe advises that the family desire to hear Senior Constable Rich's evidence in order to hear how their son came to die by a gunshot fired apparently by Constable Rich.

4. Important principles are at stake. As Mr Thangaraj points out, it is necessary first to have regard to s 58(2), which relevantly provides as follows:

"Except as otherwise provided by this Act, a witness in coronial proceedings who is a natural person cannot be compelled to answer any question... that might tend:

(a) in criminate the witness for an offence against or arising under an Australian law or a law of a foreign country, or

(b) to make the witness liable to a civil penalty."

5. Section 61(4) grants a discretion to the Coroner to require a witness to give evidence if satisfied as to both the matters in s 61(4)(a) and (b). If the Coroner exercises that discretion so as to require the witness to give the evidence, she must cause the witness to be given a certificate under s 61(5), the effect of which is provided in s 61(7).

6. It was common ground that s 61(4)(a) was irrelevant in the context of this matter and that the issue to be determined lay within s 61(4)(b), namely, whether the interests of justice require that Senior Constable Rich give the evidence.

7. I must make an assessment of factors existing both for and against an exercise of that discretion. Learned Counsel Assisting me, Mr J Gormly SC, argues in favour of Senior Constable Rich being required to give evidence on the basis that it is in the interests of justice overall. I have carefully considered the following matters concerning that submission:

(a) The Coroner's statutory duty to record full findings in respect of manner and cause of death under s 81 of the Act are not adequately fulfilled without hearing from the officer who discharged his firearm, his version of the tragedy and its reasons, and his state of mind.

(b) The Act provides for the legitimate interests of family to participate in inquests by requiring leave to be granted to appear and be legally presented. The family of Elijah Holcombe is legally represented and have a legitimate interest in hearing from Senior Constable Rich, and questioning and testing his version.

(c) This is a mandatory inquest pursuant to ss 23(c) and 27(1 )(b) of the Act, as Elijah's death occurred as a result of, or in the course of police operations. Accordingly, it will form part of the State Coroner's Annual Report to the Attorney General, which is tabled before both Houses of Parliament. Without the Court hearing Senior Constable Rich's evidence, that report will lack an important component.

(d) There is an enormous public interest in hearing the police officer's version in full when a civilian is killed by an officer. The right of a police officer to carry and use a firearm is an entitlement allowed to few others. To give the Court and the family of Elijah his explanation of why he shot Elijah may fairly be expected as a counterpart in public accountability of that entitlement.

(e) Senior Constable Rich would be protected from all reviewable decisions (including dismissal under s 181D of the Police Act 1990) and all criminal consequences of giving oral evidence by the issue of a certificate. Whilst the Commissioner of Police, under the Police Act 1990, can take actions that are not reviewable, they are relatively minor in comparison and include such things as reprimand, warning, restricted duties and the recording of adverse findings.

8. Finally, it must be taken into account that Elijah had, and was known by at least some police with whom he was involved on the day of his death, to have, a mental illness. This shooting of a mentally ill young man is not, sadly, an isolated incident. Questions arise inevitably of whether police are being sufficiently trained in and made aware of the discrete needs of mentally ill persons, and methods of dealing with them. Was Senior Constable Rich aware that Elijah had not been scheduled under the Mental Health Act and had left the hospital voluntarily? Did Senior Constable Rich believe that he had a right under s 22 of that Act to detain Elijah and return him to the hospital? If not, why did he chase after Elijah? These are significant issues which require further exploration, and may require my consideration under the power to make Recommendations under s 82 of the Coroners Act.

9. The counter arguments to requiring Senior Constable Rich to give evidence are put by Mr Saidi for the Police Commissioner and Mr Thangaraj SC for Senior Constable Rich.

10. Mr Saidi primarily argues that a s 61 Certificate would provide no protection against the evidence being used to inform a decision by the State of NSW to refuse to accept vicarious liability for Senior Constable Rich in the context of civil proceedings under s 9B of the Law Reform (Vicarious Liability) Act 1983, potentially leaving Rich exposed to a liability for civil damages. In arguing this, the interests of Senior Constable Rich and the Commissioner appear to have been conflated. They are not necessarily in alignment on this point. He also submits that a certificate does not protect the Commissioner where vicarious liability is not refused, as the certificate only provides that the evidence given under certificate "cannot be used against the person" (i.e. who actually gives the evidence). Mr Saidi describes the "interest of justice" as a very broad concept, affecting and extending to every other interested party, including the Commissioner.

11. Mr Thangaraj, in seeking to protect Senior Constable Rich from being required to give evidence, concurs with the arguments of Mr Saidi. He then urges that the Court should consider primarily s 58 of the Act, and consider not why Rich should give evidence but rather his right not to. He relies strongly on Borland v NSW Deputy State Coroner & Ors [2006] NSWSC 982 in which at first instance, Grove J upheld an appeal against the Coroner who required a Constable to give evidence without giving a reason why the interests of justice provoked the requirement. The Court of Appeal subsequently upheld the decision of Grove J in Attorney General of NSW v Borland [2007] NSWCCA 201, Handley AJA holding (at [19]) that in exercising the Coroner's discretion, the fact that a (now s 61) certificate would not protect the witness against the risk of a civil penalty was "a most material consideration".

12. Further submissions by Mr Thangaraj were:

(a) Senior Constable Rich has already given two Directed Interviews, the first virtually contemporarily with the shooting, and taken part in a walkthrough. Consequently, we are not left in a vacuum as to Rich's view of events.

(b) Sections 173 and 181D of the Police Act do enable serious action to be taken against Senior Constable Rich, and there remains the possibility of Senior Constable Rich's evidence being used by the Police Commissioner in a decision to take such action, including possible dismissal. If that were to occur, Senior Constable Rich's only recourse would only be to seek a review in the Industrial Commission.

(c) There is insufficient evidence regarding mental illness and police training in its consequences for the Court to consider making any Recommendations regarding that factor.

CONCLUSION

13. I am in no doubt that the Commissioner could make an administrative decision subjecting Senior Constable Rich to a civil penalty. I note that to date Senior Constable Rich continues to work in the same Command, at the same rank and without penalty, and consider such action by the Commissioner to be extremely unlikely. Any such reviewable action taken would be relatively modest and in any case, is highly unlikely to follow from any evidence Senior Constable Rich might give.

14. Similarly, I am advised that civil proceedings have been commenced against the Commissioner and that vicarious liability has not so far been refused.

15. Furthermore, the major penalty of dismissal, also apparently a more than remote possibility, would in fact only be reviewable in the Industrial Commission, which would of course be bound by a s 61 certificate.

16. In my view, any potential civil liability for damages, whether by Rich, the Commissioner, or the State, if not entirely irrelevant, is of little significance in this context. Any evidence by Senior Constable Rich under a certificate in these proceedings cannot be used against him in any proceedings for civil remedies. Orders for compensation have been held not to be penalties (Rich v ASIC (2004) 220 CLR 129 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [28]). Liability could arise without any further evidence from Senior Constable Rich. No one receives full immunity for their actions by reason of a certificate, and s 61 and its certificate are not designed to protect individuals, even police officers, from any form of adverse consequence of giving evidence other than self incrimination for a criminal act and a degree of civil penalty.

17. The Directed Interviews and walkthrough video are not sufficient reason to exempt Senior Constable Rich from giving evidence. His versions are untested, and necessarily defensive; they were not given voluntarily. There are issues left unanswered, which distinguishes this inquest from that scrutinised in Borland. In the latter, the police pursued a motorcycle driven at illegal speeds which crashed, killing the rider. The state of mind of the officer was not the significant issue that it is in this case. There was no suggestion of mental health factors, nor was the death directly due to an action by the officer, or the use of a police firearm. The inquest into the death of Elijah Holcombe cannot be complete or properly open to the necessary standard of scrutiny without hearing from Senior Constable Rich. I am very conscious of the possible potential exposure of Senior Constable Rich as a most material consideration. However, it is my view that the extreme unlikelihood of his in fact suffering any such detriment, without dismissing its importance in considering my discretion, is outweighed by the need for Senior Constable Rich to be required to give evidence in the interests of justice.

18. I find that the interests of justice require that Senior Constable Rich give evidence in these proceedings and I exercise my discretion under s 61 to require him to do so. I shall cause him to be given a certificate under that section

The Nature of the Proceedings

1. Mr Thangaraj of Senior Counsel who appeared with Mr Haverfield for the plaintiff, made clear at the outset that notwithstanding Order 1 in the Second Amended Summons the plaintiff did not seek prohibition. Mr Thangaraj did not assert any want of jurisdiction on the part of the Coroner. It was common ground that her Honour had the discretion under s 61(4) of the Act to require a witness to give evidence provided she were satisfied of the matters set forth in that subsection. What was sought was judicial review. That was why Mr Thangaraj amended the Summons to ask for an order quashing her Honour's direction, consistently with the judgment of the Court of Appeal in Attorney General of New South Wales v Borland [2007] NSWCA 201 per Handley AJA at [21]. Mr Thangaraj accepted that an order in terms of Order 3A sought in the Second Amended Summons would suffice. It appeared that the prayers for declarations were redundant.

1. There is no statutory right of appeal from an interlocutory or final order of the Coroner and the plaintiff invokes the Court's supervisory jurisdiction, asserting error on the face of the record and attacking the manner in which her Honour determined that the interests of justice required that the plaintiff give evidence. Since that was a discretionary decision, the principles in House v The King (1936) 55 CLR 499 apply. To establish an entitlement to an order quashing her Honour's order the plaintiff must show that in arriving at her determination her Honour acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts or failed to take into account some material consideration or that on the facts the result is unreasonable or plainly unjust.

1. In this context the term "relevant considerations", means mandatory considerations, so that failure to take them into account will amount to an error of law. Irrelevant considerations are those which are extraneous to the proper exercise of power, so that to take them into account will reveal legal error. But there may be, lying between these poles, legitimate factors consideration of which is neither mandated nor precluded. See the judgment of Basten JA in Ballantyne v Workcover Authority of New South Wales (2007) 5 DDCR 97; [2007] NSWCA 239 at [113].

1. For the most part the plaintiff relies on asserted failure to take into account mandated matters. Before dealing with the substance of the submissions I should say something further about the difference between the functions of her Honour and of this Court. It was for her Honour to identify mandated matters and to eschew consideration of extraneous matters. It was for her Honour in her discretion to identify any matter which, though not mandated, was capable of bearing upon the question where the interests of justice lay. It was for her Honour to weigh all such matters and to determine where the balance lay.

1. When this Court is asked to identify error by a Tribunal's failing to take any matter into account, the Court looks at the face of the record and determines whether the tribunal did fail to take the matter into account. But it is not for this Court to weigh relevant matters. In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 4, Mason J said at pp 39-42-

(1) Failure To Take Into Account a Relevant Consideration.

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action.

That ground now appears in s. 5(2)(b) of the A.D.(J.R.) Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty. Ltd. v.

Mackellar; Creednz Inc. v. Governor-General; Ashby

v. Minister of Immigration...

(b) What factors a decision-maker is bound to consider in making

the decision is determined by construction of the statute conferring

the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Ply. Ltd, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury and Water Conservation and Irrigation Commission (N.S W) v. Browning. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal; Hanks v. Minister of Housing and Local Government; Reg. v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd.

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v. MacKellar; Reg. v. Anderson; Ex parte Ipec-Air Pty.

Ltd; Elliott v. Southwark London Borough Council; Pickwell v. Camden London Borough Council...

(Footnotes omitted)

1. In Minister for Immigration and Multicultural Affairs v Yusuf [2005] HCA 30; (2001) 206 CLR 323 McHugh, Gummow, and Hayne JJ, dealing with the judicial review of administrative action, said at [74]-

[74] This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

1. Since the Act does not specify any matter to be considered in answering the question posed by s 61(4) (b) her Honour had to identify relevant matters by implication from the subject-matter, scope and purpose of the Act as explained by Mason J in the passage extracted above.

The Grounds on which Error is Asserted

Ground 2: The Coroner erred by failing to consider, or properly consider, the question of risk to the Plaintiff by potential evidence that may be given.

Ground 3: The Coroner erred by failing to consider, or properly consider that evidence might be given by the Plaintiff which was consistent with an earlier referral of the papers to the Director of Public Prosecutions.

1. These grounds were argued together and may be considered together. The potential evidence referred to in the second ground and the evidence that might be given referred to in the third ground are the same.

1. The case may be put in this way. The risk referred to will arise if the plaintiff gives evidence. He will be questioned by Counsel assisting the Coroner on the topics foreshadowed: see para 18 above. He will be cross-examined by counsel for the family of Elijah. The family have made clear that they hold him responsible for the homicide. They have commenced a civil action for damages from which it may be taken that they will try to establish his deliberate and wilful misconduct. The plaintiff will as a result be cross-examined on the events leading up to the death of Elijah. In the course of answering questions the plaintiff may in some way admit responsibility for murder or manslaughter. The issue, if he had been put on trial, would have been self-defence. He might give an answer inconsistent with self-defence. He might also give evidence inconsistent with statements made during the course of his three interviews with police officers, showing that he did not tell the truth. He might even commit perjury.

1. If any of these things happens there will be serious consequences from which the plaintiff cannot be protected, viz:

(1)   The Director might reconsider the matter and charge the plaintiff with criminal responsibility for Elijah's death.

(2)   The Crown might deny liability for the plaintiff's tort. If that happens he will be at risk of being made a defendant and being held liable to pay damages and costs.

(3)   The Commissioner might take action against the plaintiff by dismissing him or imposing upon him some less serious form of discipline such as changing his posting or moving him into a lesser job. The consequences of such action will be unreviewable.

1. Mr Thangaraj drew attention to her Honour's conclusion at para [13] of the judgment that any reviewable action of the kind that her Honour was dealing with would be relatively modest and was highly unlikely to follow from any evidence that the plaintiff might give. It was submitted that in coming to that conclusion her Honour considered only the evidence as it then stood. That was an error because her Honour could not assess the magnitude of the risk to the plaintiff from giving evidence without considering what he might say. In submissions filed on 27 May 2013 Mr Thangaraj wrote -

(34) Assume that the Plaintiff, under cross-examination, ultimately accepts that Mr Holcombe did not move before the shot was discharged. Or assume that the Plaintiff accepts that he did not fear any danger. That is evidence, which according to the family, he might give. In combination with the evidence of Sgt Davis, that would mean that the Plaintiff fired a shot which was unjustified. It may mean that the Plaintiff was guilty of murder or manslaughter.

(35) Therefore assume that the Plaintiff gave evidence in cross-examination which was consistent with the Coroner's referral to the Director and consistent with pleadings filed by the family:

Would the Coroner's conclusion at [13] that any reviewable action would be 'highly unlikely to follow from any evidence Senior Constable Rich might give' be accurate?

Would it be relevant that the fact that the Commissioner of Police has not yet denied vicarious liability be relevant?

1. The first of the two questions posed under para (35) of the plaintiff's written submissions was an implied invitation to this court to weigh the probabilities for itself. That invitation must be declined.

1. The second may have been intended to imply that in taking account of the fact that up to that time the Commissioner had taken no administrative action adverse to the plaintiff's employment her Honour had regard to an irrelevant matter.

1. The risk to the plaintiff from giving evidence was a material consideration and, in so far as the certificate would not protect him, her Honour was obliged to weigh it: Attorney General of NSW v Borland per Handley AJA, with whom the other members of the Court agreed, at [18], [19].

1. Any account the plaintiff gave in evidence would leave the account he had given in interviews materially unchanged or would worsen his position. If the latter, his evidence could not be used directly or derivatively against him in the circumstances contemplated by s 61(7). Her Honour was obliged to consider the risk to the plaintiff of adverse consequences against which the subsection could not protect him. As her Honour correctly concluded, there would be no civil penalty. Her Honour considered the likelihood of administrative action. Possibly the worst kind of action would result in the plaintiff's dismissal. Her Honour considered that possibility and what might flow from it.

1. In forming a view about these matters it was relevant for her Honour to take into account the fact that over the four years that had elapsed since the shooting the Commissioner had taken no action. Her Honour did not err in doing so.

1. To some extent these grounds invite this Court to concern itself in the process of fact finding. To that extent the invitation must be declined: Minister for Immigration and Multicultural Affairs v Yusuf.

1. I conclude that her Honour did not err in either of the ways contended for. These grounds have not been made good.

Ground 4: The Coroner erred by finding that a certificate provided under section 61 of the Coroners Act 2009 would give protection to the Plaintiff with respect to the use by the Commissioner of Police of evidence given in the proceedings by the Plaintiff when considering employment discipline and employment termination issues.

1. Two matters were asserted under this ground. First, it was submitted that if the plaintiff were dismissed he would suffer detriment whether or not he sought redress in proceedings for unfair dismissal and regardless of the result of any such proceedings. So to conclude that the s 61 certificate would avail the plaintiff in any such proceedings was an irrelevant matter. So her Honour erred in taking it into account.

1. In my opinion her Honour's conclusion was not irrelevant. Her Honour was entitled to consider it in weighing the magnitude of the risk to the plaintiff of giving evidence.

1. The second matter challenged her Honour's conclusion that the certificate would be effective in proceedings in the Industrial Relations Commission. It was submitted that it would be odd if the Commissioner could dismiss the plaintiff because of things revealed in his evidence but in defending an action for unfair dismissal could not say why the plaintiff had been dismissed. Whether that curious prospect might make the Commissioner less likely to dismiss the plaintiff need not be considered.

1. The effect of s 61(7) includes that any evidence that the plaintiff gives in respect of which he has a certificate under subs (5) cannot be used against him 'in any proceeding....before any body authorised by a law of the State... to hear, receive and examine evidence.'

1. Chapter 4, Part 1 of the Industrial Relations Act 1996 establishes the Industrial Relations Commission and deals with its functions. Section 146 (1) provides, in part, that the Commission has the following functions -

(b) resolving industrial disputes, and

(c) hearing and determining other industrial matters.

1. Relevantly, s 163 is as follows -

(1) The Commission:

(a) is not bound to act in a formal manner, and

(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and

(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

1. Relevantly, s 164 is as follows -

(1) The Commission may exercise the functions of the Supreme Court in relation to:

(a) compelling the attendance of witnesses and examining them on oath or affirmation, or by use of a statutory declaration, and

(b) compelling the production, discovery and inspection of records and other documents, and

(c) compelling witnesses to answer questions which the Commission considers to be relevant in any proceeding before it, and

...

1. Part 6 of the Act deals with unfair dismissals. Section 84 provides for applications to be made to the Commission for remedy by dismissed employees. Section 88 deals with matters the Commission may consider in determining claims. Section 89 deals with the remedies the Commission can order.

1. I will not set out the detail of these various provisions. In my opinion the sections of the Act that I have mentioned show that an application to the Industrial Commission for a remedy for unfair dismissal would commence a proceeding before a body authorised by a law of the State to hear, receive and determine evidence.

1. Section 61(7) is mandatory. It would prevent the use in the Industrial Relations Commission of the plaintiff's evidence against him if he commenced proceedings for unfair dismissal.

1. I conclude that her Honour did not err in either of the ways contended for. This ground has not been made good.

Ground 5: The Coroner erred in failing to give weight to, or sufficient weight to, the potential civil liability the Plaintiff may face if he is called upon to give evidence.

1. This ground deals with what is asserted will be the probable course of cross-examination if the plaintiff gives evidence, and the consequences. The plaintiff's submissions do not always make clear when or what error is asserted. In submissions filed on 27 May 2013 there are these paragraphs -

(21) The Coroner regarded as relevant, the fact that the family wished to cross-examine the Plaintiff.

(22) The family of a victim does not normally have a right to cross-examine an alleged offender. The family does not ever cross-examine an accused person. In a Coronial Inquest, the Coroner has Counsel Assisting who will ask all relevant questions. The Coroner will also ask any questions which are required.

(23) In Borland v NSW Deputy State Coroner [2006] NSWSC 982 at [20], Grove J did not seem persuaded with the suggestion that the family's right to cross-examine was relevant to the question of the interests of justice.

(24) The family instituted civil proceedings against the police in 2011. They allege, inter alia, that the shooting was 'unlawful' and the result of 'intentional' or 'negligent acts'. The particulars of the unlawful conduct include:

'Constable Rich did not reasonably believe that it was necessary to shoot Elijah for the purpose of defending himself or another person';

'There was no reasonable possibility that Constable Rich's response was a reasonable response to the circumstances as he perceived them';

'Constable Rich was not acting in self-defence.'

(25) It is readily apparent that the pleadings in the civil proceedings are inconsistent with the conclusions of the Director. However the pleadings demonstrate what it is that the family will attempt to establish in any cross-examination of the Plaintiff. The family will attempt to establish that the Plaintiff is guilty of murder or manslaughter. If its cross-examination of the Plaintiff is at all successful, the family will again ask the Coroner to refer the matter to the Director. This is one of the unfair risks facing the Plaintiff if he is required to give evidence.

(26) Legislation does not permit the Holcombe's to institute proceedings against the Plaintiff as a party. Therefore the named defendant is the New South Wales Police Force. However the Police Force is entitled to deny vicarious liability. As of yet, they have not done so. One would assume that that is because the Police Force, on the evidence it currently has, has concluded that Senior Constable Rich acted appropriately.

(27) However the Police Force has informed the Coroner that that position may change depending upon any evidence from Senior Constable Rich. There were a number of potential reasons given as to why that may happen (T25.27 on 26/3/13). Therefore a further potential risk to the Plaintiff is that he becomes a party to the civil proceedings. That would expose him to the risk of damages and costs, as well as the stress and difficulties facing any defendant. He would also have his co-defendant, the Police, attempt to shift liability on to him.

(28) The evidence of the Plaintiff is potentially admissible in the civil case being brought by the family against the New South Wales Police. The Coroner's Court should not be used as a vehicle to adduce evidence which is then to be used in civil proceedings. The family is not seeking to ask questions only to determine what happened. The family has taken a view, firm enough to result in very serious allegations in a pleading. Therefore the family is seeking to establish its already determined position. The family in fact has a financial incentive to establish that the Plaintiff acted unlawfully.

1. It is unfortunate that the plaintiff has attributed a base motive to Elijah's family. They have the right to cross-examine the plaintiff if he gives evidence on matters which are relevant to the proceedings: the Act s 57(2). The Coroner has the power to control the proceedings and may limit or prevent counsel from asking questions about matters not considered relevant.

1. Elijah's family have a legitimate interest in learning how Elijah died. In view of the plaintiff's statements in the interviews about things Elijah did, they also have the right to be heard in opposition to any adverse finding relating to him.

1. The assertion in para (28) about evidence being 'potentially admissible' is speculative. If the remainder of the paragraph amounts to an assertion that Elijah's family are using the proceedings for an improper purpose I reject it, both on its merits and because it was not squarely put below so as to enable counsel to respond to it.

1. In para (47) the plaintiff attacks her Honour's observation that orders for compensation are not civil penalties. He asserts, I think, that her Honour thereby took into account an irrelevant matter. He submits that exposure to the risk for an order for damages and costs is a risk relevant to the interests of justice even though it is not a civil penalty. So the distinction is irrelevant in the assessment of risk.

1. I do not accept the submission or the implication that her Honour erred. As I have said, it was incumbent on her Honour to identify from the subject-matter, scope and purpose of the Act which considerations were mandated in determining where the interests of justice lay. It was relevant, because of the entitlement created by subs 1(b), to distinguish whether the risk involved a civil penalty. Since the intent of the Act was to give protection against the risk of civil penalty an apprehension of that risk would speak more strongly in favour of exempting a witness from giving evidence.

1. In any event, the risk the plaintiff was entitled to have weighed was that which would result from the evidence he might give because of the abrogation of his right not to incriminate himself. If he were to give evidence the certificate would prevent the use against him of that evidence in any civil proceedings to which he became a party.

1. Mr Thangaraj observed that because the Commissioner of Police had not denied vicarious liability for the plaintiff's torts, the sole defendant in the criminal proceedings was the New South Wales Police Force. However, he submitted, the Police Force was entitled to deny liability. He relied on paras (26) and (27) of the submissions extracted in this judgment at [53].

1. In document filed on 14 June 2013 there were these submissions -

(34) The Commissioner of Police has placed on the record before the Coroner that it might not support the Plaintiff. The Commissioner will assess his position after any evidence the Plaintiff might be compelled to give.

(41) ... The Commissioner placed on the record that his view might change. It would depend upon the evidence of the Plaintiff.

1. What Mr Saidi said to the Coroner as recorded at pp 23-24 of the transcript of 26 March 2013, was this -

SAIDI: It seems clear that Senior Constable Rich's conduct is going to continue to be attacked and whatever counsel assisting may forecast as what is going to occur in these proceedings may not necessarily be what does in fact occur, because, your Honour, any decision or any determination that's being made in relation to vicarious liability has been made on the basis of information as currently stands as currently understood. Let me give an extreme example, your Honour.

...

SAIDI: Put Constable Rich in the witness box, let's take the extreme example and let the evidence of 20-25 civilian witnesses be put to him and let's assume by way of skilful cross-examination Senior Constable Rich were to say, well, you know, I got it wrong during the course of the walkthrough, yes, there are 20 witnesses, they must be right and I must be wrong and maybe I shouldn't have shot him. Now, there is an extreme example, but I am not here to forecast or prognosticate as to what he's going to say, I'm here to highlight that there are risks which exist.

HER HONOUR: But it that did happen - I understand it's very unlikely, but if it did, how could that be used against him given that he would have a certificate?

SAIDI: Well, the certificate will not cover any determination made by the State of New South Wales --

HER HONOUR: No, I understand that. Are you saying that it might lead to the withdrawal--

SAIDI: A denial of vicarious liability.

HER HONOUR: --of acceptance of vicarious--

SAIDI: Precisely.

HER HONOUR: Okay.

SAIDI: Now, let's assume Senior Constable Rich were to say - and again I' m sorry to use extremes, you Honour, but let's assume he were to say, look, I was traumatised when I went through that walkthrough. That was my perception of events. I have now read the coronial brief of evidence, I can see that there are 12 witnesses who give contrary evidence, and, you know, they just might be right, and Elijah didn't take a step towards me. Well, your Honour, if it be the case on the basis of Peter Davis's evidence that that evidence be taken to be cogent, your Honour, that would mean that there was serious and lawful misconduct on the part of Senior Constable Rich.

That would mean that there would be not merely a denial of vicarious liability but I'll take it a step further and I'm going to suggest that under the provisions of the State legislation he would then become a joint tortfeasor with the State of New South Wales, having been cut adrift, and he would be the subject of the issue of a potential for a cross-claim to be mounted against him, as a joint tortfeasor.

1. It thus appears that Mr Saidi did no more than direct her Honour's attention to the rights of the defendant in the civil proceedings. Any explanation of the circumstances in which the rights might be exercised was hypothetical. Her Honour was entitled to assess the risk accordingly.

1. Other submissions made under this ground were that the provisions of s 9B Law Reform (Vicarious Liability) Act 1983 were intended for the protection of police officers like the plaintiff. The risk to be assessed involved the consideration that he might lose that protection. That might lead to a loss of employment. Secondly, the plaintiff, unlike members of the public was obliged to take part in his interviews with police officers.

1. Her Honour was aware of all these matters. None was required to be dealt with in terms.

1. In carrying out the assessments set forth in the judgment at paras [13], [15] & [16] her Honour was entitled to take into account that the Commissioner had not up to that time dealt with the plaintiff adversely in his employment and had not denied vicarious liability in the civil proceedings. She was entitled to assess the several factors as set forth in the judgment.

1. This ground has not been made good.

Ground 6: The Coroner erred by failing to consider, or properly consider, the accumulation of factors relied upon by the Plaintiff in argument concerning "interests of justice".

Ground 7: The Coroner erred in finding an "extreme unlikelihood of his in fact suffering any such detriment" failed to consider, or properly consider, the potential evidence that may be given.

1. These grounds may be dealt with together. The first submission lit upon the way her Honour expressed her assessment of the weight to be given to the fact that the Court already had a version of facts from the plaintiff as given in his answers to questions in the interviews in which he had participated. That was a matter relevant to the need for him to give evidence. In Attorney General of NSW v Borland Handley AJA said at [19] -

Another highly relevant consideration is that the Coroner already has statements from the police officers which give their version of events. He is not bound to accept those versions, and could receive any expert or other evidence which tended to contradict them.

1. The submission drew attention to the first sentence of para [17] of her Honour's judgment, extracted above. It was submitted, and may be accepted, that the balance by which the interests of justice were to be determined was not to be achieved by weighing countervailing factors individually. The plaintiff was entitled to an assessment of the accumulated weight of all the factors relied on to support the case for exemption. A similar criticism was made of her Honour's conclusion in the last sentence of the same paragraph, dealing with the stated "extreme unlikelihood" of the plaintiff's suffering detriment of the kind there under consideration.

1. I do not accept these submissions. The judgment as a whole shows that her Honour was well aware that the balance was to be struck and the interests of justice determined by comparing all the prevailing factors with all the countervailing factors. Having identified the issue for determination at [6] her Honour said at [7]

I must make an assessment of factors existing both for and against an exercise of that discretion. Learned Counsel Assisting me, Mr J Gormly SC, argues in favour of Senior Constable Rich being required to give evidence on the basis that it is in the interests of justice overall.

1. Her Honour than listed factors pointed to by counsel assisting her Honour without any suggestion that any fell to be weighed individually against any countervailing factor. Her Honour then listed the factors pointed to by Mr Saidi and Mr Thangaraj. Her Honour then began the assessment of matters affecting the plaintiff.

1. At [13] her Honour assessed the chances of administrative action by the Commissioner of Police as extremely unlikely and concluded that any reviewable action taken would be relatively modest and highly unlikely to follow. There was no suggestion that her Honour was intending to weigh that matter by itself against the factors pointed to by counsel assisting the inquest.

1. At [15] her Honour weighed the risk of dismissal without any suggestion of requiring it to have effective weight alone.

1. At [16] her Honour assessed the risk of civil liability for damages as of little significance if not irrelevant. There was no suggestion that it would not be weighed with the other factors relied upon by Mr Thangaraj.

1. It was not until the second-last paragraph of the judgment that her Honour used the language now under attack.

1. I do not think that her Honour had any intention of singling out these last two factors in the manner contended for. It would be strange if, mid-judgment and without asserting reasons, her Honour had decided to change the balancing technique, to weigh the foregoing factors cumulatively but the last two individually. Her Honour's expression "without dismissing its importance in considering my discretion" when dealing with the risk of detriment seems more apt to an inclusion of the weight of that factor with the weight of other factors.

1. These grounds have not been made good.

Ground 8: The Coroner erred by failing to consider, or properly consider, the potential use by the Director of Public Prosecutions of any further evidence given by the Plaintiff.

1. Mr Thangaraj submitted that her Honour failed to take this risk into account. He submitted to her Honour and to this Court that although evidence given by the plaintiff pursuant to her Honour's direction could not be used against him in a criminal proceeding brought by the Director, there was a way in which the Director could make indirect use of the evidence to the detriment of the plaintiff. If, for example, the plaintiff said something in evidence that showed that he had no available defence of self-defence the Director could reconsider the matter, form the opinion that there were reasonable prospects of securing a conviction and charge the plaintiff with murder or manslaughter. The protection afforded by the certificate under s 61(7) was in the terms of that subsection, confined to use "in any proceedings in a NSW court...". Those words were insufficient to prevent the Director's using the evidence in the manner contended for.

1. The evidence shows that it was after the completion of the evidence of all the proposed witnesses, other than the plaintiff, that Elijah's family asked her Honour to refer the proceedings to the Director a second time. Her Honour declined to do so. Any evidence given by the plaintiff hereafter would be protected by the certificate, so the state of the evidence for the purposes of any further referral to the Director could not change. There is no reason to suppose, therefore, that her Honour may refer the proceedings to the Director again.

1. Guideline 4 of the Prosecution Guidelines issued by the NSW Director of Public Prosecutions include this-

The question whether or not the public interest requires that a matter be prosecuted is resolved by determining:

(1) Whether or not the admissible evidence available is capable of establishing each element of the offence;

(2) Whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not

(3) Whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest.

1. It appears that the Director's own guidelines permit a decision to prosecute to be made only in consideration of admissible evidence. That would preclude the Director's institution of criminal proceedings on the postulated basis.

1. Her Honour did not deal with the submission in terms, either in summarising Mr Thangaraj's submissions or in the consideration of them. Her Honour was unlikely to have overlooked the submission and must, I think, have rejected it out of hand. In my view her Honour was entitled to do so. In my opinion her Honour's consideration of it was not mandated.

1. Shortly before the time appointed for judgment to be given my attention was drawn to the judgment of the New South Wales Court of Appeal in SD v New South Wales Crime Commission [2013] NSWCA 48, and in particular to part of the judgment of Basten JA with whom Macfarlan JA agreed.

1. In that matter the applicant for leave to appeal had been required to appear before the New South Wales Crime Commission, ("the Commission"), and was questioned about his knowledge of two shooting incidents. The applicant declined to answer two questions and gave as an excuse that the Commission declined to make what the applicant considered an adequate non-publication order in respect of any evidence that might result.

1. The Commission rejected the refusal as unjustified. The applicant appealed to this Court and Adamson J dismissed the appeal. The application was for leave to appeal against her Honour's order.

1. The privilege claimed by the applicant was that set forth in the New South Wales Crime Commission Act 1985. Relevantly, that Act was a follows:

"18 Failure of witnesses to attend and answer questions etc

...

(2) A person appearing as a witness at a hearing before the Commission shall not, without reasonable excuse or except as provided by section 18A or 18B:

(a) when required pursuant to section 16 either to take an oath or make an affirmation-refuse or fail to comply with the requirement,

(b) refuse or fail to answer a question that the person is required to answer by the member presiding at the hearing, or

(c) refuse or fail to produce a document or thing that the person was required to produce by a summons under this Act served as prescribed."

"18B Privilege concerning answers and documents

(1) A witness summoned to attend or appearing before the Commission at a hearing is not ... excused from answering any question or producing any document or thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

(2) An answer made, or document or thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.

(3) Nothing in this section makes inadmissible:

...

(b) any answer... in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer... irrespective of the provisions of subsection (1)..." .

1. Relevantly, the only immunity conferred by the Act lay in s 18B(2). That subsection would protect a witness, in appropriate circumstances, against the admission in any civil or criminal or disciplinary proceedings of any answer given or document produced to the Commission. The Act conferred no immunity from derivative use of any such answer or document.

1. At [34] and [35], Basten JA said this:

34. The next question is whether any duty imposed by s 13(9) to prevent publication which might prejudice a fair trial encompassed an obligation to ensure that the transcript of evidence given before the Commission is not supplied to the Director of Public Prosecutions. The formulation of the question in these terms renders an affirmative answer difficult. First, nothing in the Crime Commission Act would support an affirmative answer. Only with some awkwardness could the release of information to the Director of Public Prosecutions be seen to constitute "publication" for the purposes of s 13(9). Secondly, no case was identified in which disclosure of material, even if inadmissible or illegally obtained, to a prosecutor has been held to give rise to an unfair trial. While misuse of such material could lead to a trial being aborted or a conviction set aside, there is no reason why the Commission should expect, or has an obligation to protect against, misuse.

35. Leaving all that aside, the artificiality and prematurity of the applicant's case remains a problem. The likelihood of different considerations arising at different times may be illustrated by reference to the second question which the applicant refused to answer. The question itself indicated that three people were believed to have been in the car when shots were fired. Each of those three might be the subject of compelled testimony before the Commission. Each might tell a different story as to where he or she was in the car and who fired a gun. Independent evidence may indicate that one or more of the statements was not to be believed. If charges were to be laid in such circumstances, it would be the responsibility of the Director to formulate appropriate charges for the purposes of an indictment: Director of Public Prosecutions Act 1986 (NSW), s 7. The Director must, of course, present a charge supported by admissible material. However, inadmissible material may demonstrate that it is inappropriate to formulate a charge in a particular way or against a particular individual. It would not obviously be in the public interest to foreclose access to that material.

1. It was to the last three sentences of [35] that my attention was drawn.

1. There are two reasons why what was said by Basten JA does not affect my opinion. First, the Director must be expected to act in accordance with the guidelines. Their effect is that the Director may consider inadmissible material in deciding not to prosecute, but in deciding to prosecute may consider only admissible evidence.

1. Secondly, Basten JA was dealing with the use the Director might possibly make deriving from any answer given or document tendered before the Commission. As s 61(7) of the Coroners Act makes clear, a certificate under subs (5) protects a witness against derivative use.

1. The remarks of Basten JA do not lead me to change my opinion that ground 8 has not been made good.

Ground 1: The Coroner erred in finding that the interests of justice require that Senior Constable Rich give evidence in the coronial proceedings of the Inquest into the death of Elijah Jay Holcombe.

1. The first submission under this ground repeated the assertion which I have rejected in dealing with grounds 6 and 7, that her Honour erred in the way in which she dealt with the weight of the fact of the directed interviews.

1. The second submission amounted to a restatement of the first. It was that her Honour erred in failing to take the fact of the interviews into account together with other relevant factors. It must also be rejected.

1. This submission was made at (10) of the document filed on 14 June 2013 -

In Borland, Grove J found that the mandatory nature of an inquest demonstrates judicial oversight by way of a Coronial [19]. His Honour did not agree that it followed that weight ought be given to a desirability that police officers should testify. At [7(a) and (c)], the Coroner in the present matter considered the mandatory nature of the Inquest. If her Honour relied upon those matters, they were irrelevant.

1. In fact what Grove J said at [19] was this -

It is, however, a justifiable conclusion that the provisions mandating inquest by the State Coroner or a Deputy State Coroner where police operation may have been involved show a legislative intention that there be judicial (coronial) oversight. His Honour's observation infers that weight should be given to a desirability that police officers involved in such an operation should testify.

1. In para [7](a) & (c) of the judgment, her Honour was summarising counsel's submissions. At [17] her Honour assessed the importance of the plaintiff's contemplated evidence in the context of the case before her. However, nowhere in her Honour's reasons does it appear that her Honour was of the view that the mandatory nature of the inquest increased the need to direct the plaintiff to give evidence.

1. It was also submitted that her Honour "failed to deal with" the fact that although the inquest was mandatory the discretion not to require the plaintiff to give evidence remained. As the judgment makes clear, her Honour did not doubt the continuing existence of the discretion.

1. A further submission under this ground also relied on the judgment of Handley AJA in Attorney General of NSW v Borland, extracted above, at [19]. It was put that the Coroner already had an account of the events from the plaintiff, comprising his answers in directed interviews. The Coroner had other evidence as well and could use it to test the plaintiff's account. It was observed that her Honour made no mention of the existence of the plaintiff's account or of her ability to test it by comparing it with other evidence.

1. In order to be worthy of consideration, this submission would have to be understood as asserting error in failing to take into account a relevant matter. The judgment shows that her Honour was well aware of the plaintiff's account and that, notwithstanding other evidence before her Honour, considered that it needed testing.

1. The submission, if that is what it is, that her Honour erred in failing to take into account a relevant matter, has not been demonstrated.

1. This ground has not been made good.

Disposition and Orders

1. The plaintiff has failed to make a case for her Honour's direction to be quashed.

1. The summons is dismissed. The plaintiff must pay the costs of the first and the third defendants.

**********

Amendments

25 September 2013 - Additional reasons provided

Amended paragraphs: Footnote

Decision last updated: 25 September 2013