Wright v The State Coroner

Case [2016] QSC 305

SUPREME COURT OF QUEENSLAND

CITATION:

Wright v The State Coroner [2016] QSC 305

PARTIES:

KEVIN JOHN WRIGHT

(applicant)

v
THE STATE CORONER, TERRY RYAN

(respondent)

FILE NO/S:

SC No 497 of 2016

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

16 December 2016

DELIVERED AT:

Cairns

HEARING DATE:

9 December 2016

JUDGE:

Henry J

ORDER:

Application dismissed

CATCHWORDS:

MAGISTRATES – CORONERS – INQUESTS AND INQUIRIES – PROCEEDINGS AT INQUEST OR INQUIRY – WITNESSES – where the Coroner held that the applicant is required to give evidence before a s 10  Coroner’s Act 1958 (Qld) inquiry – where the applicant seeks a declaration that a s 10 inquiry under the Coroner’s Act 1958 (Qld) does not abrogate the common law privilege against self-incrimination – where the applicant submits s 34 of the Coroner’s Act 1958 (Qld) does not expressly oust the right to claim privilege against self-incrimination in respect of questions about s 10 inquiries – whether the applicant can be compelled to answer questions for the s 10 inquiry pursuant s 34 of the Coroner’s Act 1958 (Qld).

EVIDENCE – ADDUCING EVIDENCE – WITNESSES – COMPETENCE AND COMPELLABILITY – COMPELLABILITY – where the Coroner held that the applicant is required to give evidence before a s 10 Coroner’s Act 1958 (Qld) inquiry – where the applicant submits that pursuant to the legality principle the Coroner’s Act 1958 (Qld) does not expressly abrogate the right to claim privilege against self-incrimination – whether s 34 of the Coroner’s Act 1958 (Qld) does expressly oust the right to claim privilege against self-incrimination in respect of questions about s 10 inquiries

Acts Interpretation Act 1954 (Qld), s 14B(1)
Attorney-General Act 1999 (Qld), s 7(1)(i)
Coroner’s Act 1958 (Qld), s 4, s 7B, s 8 , s 9, s 10, s 33, s 34

Azzopardi v R (2001) 205 CLR 50, cited
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, cited
Momcilovic v The Queen (2011) 245 CLR 1, cited
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, cited
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, cited
Sorby v The Commonwealth (1983) 152 CLR 281, cited
X7 v ACC (2013) 248 CLR 92, cited

COUNSEL:

M Jonsson QC for the applicant

K Mellifont QC for the Attorney-General

SOLICITORS:

Connolly Suthers Lawyers for the applicant
A Tuyte (sol) for the respondent
Crown Law for the Attorney-General

  1. A coronial inquest has commenced in Townsville into the disappearance of Anthony John Jones, last seen in November 1982.

  2. A question arising in that inquiry into a missing person is whether the Act under which it is being held, the Coroner’s Act 1958 (Qld) (“the Act”), abrogates the common law privilege against self-incrimination in such an inquiry under that Act.  The Coroner has ruled that it does.[1]  The applicant contends it does not.  He seeks a declaration to that effect, in terms referable to the inquest.[2]

    [1]     His…

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Wright v The State Coroner [2016] QSC 305
Case
[2016] QSC 305
Decision Date

CaseChat Overview and Summary

In Wright v The State Coroner, the applicant contested the requirement to provide evidence before a section 10 Coroner's Act 1958 (Qld) inquiry, arguing that the privilege against self-incrimination was not abrogated by the Act. The central issue before the court was whether section 34 of the Coroner’s Act 1958 (Qld) expressly abrogated the right to claim privilege against self-incrimination for questions related to section 10 inquiries. The applicant contended that section 34 did not expressly oust the privilege, and therefore, witnesses should retain the common law right to refuse to answer questions that might incriminate them.

The court examined the language of section 34, particularly subsection (4), which mandates that relevant witnesses shall be compellable to answer questions about specific topics pertinent to section 10 inquiries. The court held that by explicitly stating that a relevant witness "shall be compellable" to answer questions about section 10 topics, the section overrides the common law privilege against self-incrimination. The court reasoned that section 34(4) confers more than the ordinary power of a presiding judicial officer to require witnesses to answer relevant questions. Instead, it expressly compels witnesses to answer questions on specific topics, thereby overriding the witness's right not to be compelled to answer questions that might incriminate them. The court concluded that section 34(4) does indeed expressly abrogate the privilege against self-incrimination for the purposes of section 10 inquiries.

The court dismissed the application, affirming that section 34 of the Coroner’s Act 1958 (Qld) does expressly oust the right to claim privilege against self-incrimination in respect of questions about section 10 inquiries. Consequently, the applicant was required to comply with the Coroner’s directive to give evidence as a relevant witness at the section 10 inquiry.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

That positive step appears to have been taken in s 34, which relevantly provides:“34 Admission of evidence(1) In any inquest the coroner may admit any evidence that the coroner thinks fit, whether or not the same is admissible in any other court, provided that no evidence shall be admitted by the coroner for the purposes of the inquest unless in the coroner’s opinion the evidence is necessary for the purpose of establishing or assisting to establish any of the matters within the scope of such inquest. …(4) Without derogating from any other provision of this Act, any person who has or who alleges or has alleged that the person has knowledge or information concerning any matter or thing relevant to an inquiry under section 10, or who the coroner has reason to believe has, or is alleging or has alleged that the person has such knowledge or information, shall be a competent and compellable witness at such an inquiry both as to such knowledge or information and as to the sources from which the person obtained same.(5) A statement or disclosure made by any witness at an inquiry under section 10 in answer to any question put to the witness by or before the coroner shall not (except in proceedings in respect of contempt of a Coroner’s Court or of an offence against the Criminal Code, sections 123 and 126 to 130 respectively) be admissible in evidence against the witness in any civil or criminal proceedings.” (Emphasis added, footnotes omitted) Section 34(4) applies to a witness who on any of the bases stipulated is understood to have knowledge or information concerning any matter or thing relevant to an inquiry under section 10. These reasons will hereafter refer to such a witness as “a relevant witness”. On its terms, s 10 identifies such relevant matters or things, which I will hereafter refer to as “s 10 topics”, as being:· “the cause and circumstances of the disappearance of [the] missing person”;· “such matters and things as will or will be likely to reveal whether such missing person is alive or dead”;· “if such person is alive or likely to be alive, the whereabouts of such person”. The express effect of s 34(4) is that a relevant witness “shall be a compellable witness at such inquiry both as to the knowledge or information” the witness has on s 10 topics “and as to the sources from which the person obtained same”. The applicant submitted s 34(4) has the effect of compelling a relevant witness to attend a s 10 inquiry to give evidence.[11] But the sub-section’s language goes further than that. The sub-section expressly provides such a witness “shall” be compellable “as to” s 10 topics. That is, the section’s language relates not merely to attendance but to the topics of questioning in respect of which the witness is compellable at a s10 inquiry. [11] Applicant’s written submissions [21], [30]. In making a relevant witness “compellable” to answer questions as to s 10 topics, as s 34(4) expressly does, it necessarily invests the Coroner with the power to compel a relevant witness to answer questions about s 10 topics. This must mean more than that the Coroner merely has the ordinary qualified power of a presiding judicial officer to require witnesses to answer relevant questions asked of them.[12] That ordinary power is qualified by the right of a witness not to be compelled to answer a question on the ground the answer would tend to incriminate the witness. The Act’s specific provision in s 34(4) for compellability only in respect of questions asked of relevant witnesses about s 10 topics of itself suggests it confers more than that ordinary qualified power. That is, where the narrow circumstances contemplated by s 34(4) apply, the sub-section overrides the right a relevant witness would otherwise ordinarily have not to be compelled to answer a question on the ground the answer would tend to incriminate the witness. If it did not have that effect the sub-section would serve no purpose.[12] That ordinary power is reflected in s 38A of the Act which permits a Coroner at any form of inquest under the Act to commit to prison a witness who refuses “without just excuse” to answer questions.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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