Decker v State Coroner of NSW and Anor [1999] NSWSC 369 (22 April 1999)

Last Updated: 27 April 1999

NEW SOUTH WALES SUPREME COURT

CITATION: DECKER v STATE CORONER OF NSW & ANOR [1999] NSWSC 369

CURRENT JURISDICTION:

Common Law Division

FILE NUMBER(S): 10649/99

HEARING DATE{S): 12 April 1999

JUDGMENT DATE: 22/04/1999

PARTIES:

Beth Annette Decker (Plaintiff)

State Coroner of New South Wales (First Defendant)

David Warren-Gash (Second Defendant)

JUDGMENT OF: Adams J

LOWER COURT JURISDICTION: Coroner's Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Mr D Hand

COUNSEL:

Mr M A Green QC with Mr Todd Alexis (plaintiff)

Mr P R Hennessy SC with Mr E G Romaniuk (second defendant)

SOLICITORS:

Legal Representation Office (Marilyn Bartole) (Plaintiff)

Curwood & Partners (Second Defendant)

CATCHWORDS:

Coroner's Court of NSW -

whether bound by the Evidence Act 1995

privilege against self-incrimination

whether certificate of immunity can be given by Coroner

ACTS CITED:

Coroners Act 1980

Evidence Act 1995

Coroners Act 1912

Coroners Court Act 1904

Coroners Act 1960

Coroners Amendment Act 1988

DECISION:

Declarations sought are refused.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

10649/99

ADAMS J

22 APRIL 1999

DECKER v STATE CORONER OF NSW & WARREN-GASH

JUDGMENT

1 ADAMS J: On 30 July 1997 a landslide below the Alpine Way at Thredbo caused the deaths of eighteen persons. An inquest into the manner and cause of those deaths commenced in the Coroner's Court of New South Wales on 10 August 1998. The plaintiff is the mother of one of the dead victims of the landslide. The second defendant is a geologist who was employed by the New South Wales Road and Traffic Authority and its predecessor, the Department of Main Roads, since 1986. His responsibilities included planning and execution of a range of geo-technical work including, in particular, work in relation to the Alpine Way from 1991 to 1996. He attended at the site of the landslide in the early morning of the following day and inspected the site and undertook certain supervisory responsibilities connected with the rescue operation. The second defendant provided a statement to the inquest almost exclusively confined to his involvement in this operation. Also provided to the inquest were a number of reports by the second defendant prepared in the course of his duties covering the period from 1991 and 1996 relating, inter alia, to the stability of the Alpine Way in the vicinity of the landslide.

2 On 16 March 1999, the second defendant was called before the inquest to give evidence but, relying on s 33 of the Coroners Act 1980 (the 1980 Act), declined to answer any questions on the ground that the answers might tend to incriminate him. The coroner upheld the objection and stood the defendant down. In doing so, the coroner observed that any question which was relevant to the inquiry was probably incriminating whilst an irrelevant question would not be permitted. Although, in general, the objection should be taken to each question as it is asked to enable the court to determine whether it be appropriately taken, the course of action adopted by the coroner in the circumstances of his inquest was not inappropriate having regard to the nature of coronial inquiries, which are investigative, without parties and are not bound to follow the rules of procedure and evidence applicable in a court of law; the plaintiff in this court does not submit to the contrary. On 18 March 1999, Mr Green QC, counsel for the families of fifteen of the eighteen victims, submitted to the Coroner that he should apply the provisions of s 128 of the Evidence Act 1995 (the Act), give a certificate under subsection 128(3) and require the second defendant to give the evidence which he had earlier declined to do. The coroner rejected this submission saying, in substance, that he was not entirely convinced that the Act applied to proceedings in a coroner's court and that, even if it did, he would decline to exercise his discretion to give a certificate, presumably upon the ground that he was not satisfied that "the interests of justice require that the witness give the evidence" (s 128(5)).

3 The plaintiff seeks from this court a declaration that the Act applies to the coroner's court so that a certificate may be given to the second defendant in accordance with s 128 and requiring him to give evidence. The second defendant opposes the granting of the declaration sought upon two grounds : firstly, the Act does not apply to coronial proceedings; and, secondly, even if the Act did apply, the exercise of the Coroner's discretion was not shown to have erred.

4 Section 4(1) of the Act provides that its provisions apply "in relation to all proceedings in a New South Wales Court". The relevant definition in the Act's dictionary is -

NSW Court means:

(a) the Supreme Court, or

(b) any other court created by Parliament,

(including such a court exercising federal jurisdiction) and includes any person or body (other than a court) that, in exercising a function under the law of the State is required to apply the laws of evidence.

5 The Coroners Act 1980 provides as follows -

33. A coroner holding an inquest or inquiry shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law, but no witness shall be compelled to answer any question which criminates the witness, or tends to criminate the witness, of any felony, misdemeanour or offence.

It follows that if a coronial inquest is not conducted by a court, the Act does not apply to it since a coroner is not required to apply the laws of evidence. It was not contended otherwise by Mr Green QC for the plaintiff. The crucial question is whether a coroner's court is "created by Parliament" within the meaning of paragraph (b) of the definition of "NSW Court".

6 If the matter were ever the subject of serious controversy, there has been for some time no doubt that a coroner's court is a court of record, not only because the coroner is required to take and file depositions (s 34 of the 1980 Act) and record his or her findings (s 22) and has the power to punish for contempt (s 43) but "also by force of its early history and powers": Attorney General v Mirror Newspapers [1980] 1 NSWLR 374 at 381, 386; John Fairfax & Sons Limited v Gill (1988) NSWLR 77 at 80-1.

7 The question before me, however, is not so much whether a coroner's court is a court as that term is used in the definition in the Act but whether it is a court created by Parliament. The Coroners Act 1898 consolidated the whole or parts of eight earlier statutes, being described as "an Act to consolidate the enactments relating to Coroners' Inquests, and to Magisterial Inquiries into the cause of death". That Act proceeded upon the assumption that the office of coroner was otherwise established and in form and substance regulates certain aspects of inquest procedure and the powers and duties of coroners. In no sense could it be suggested that that Act created a coroner's court.

8 Ensuing legislation amended the procedures and expanded the powers of coroners leading to a further consolidation by the Coroners Act 1912. One of the Acts repealed by the 1912 statute was the Coroners Court Act 1904 but the substance of this latter Act was simply to provide that coroners were to conduct all "inquisitions" without a jury except in particular cases, and expressly provided that this tribunal (to use a neutral term) was in every other respect unchanged as to its character and powers. The 1912 Act was, as I have mentioned, a consolidation and did not effect any material change to the office or functions of the Coroner.

9 As was pointed out by Kirby P (as he then was) in Attorney General v Maksimovich (1985) 4 NSWLR 300 at 305, the office of coroner was established in New South Wales by Letters Patent in 1787. The Coroners Act 1960, inter alia, repealed the 1912 Act and otherwise regulated and to some degree expanded the powers of coroners but, again, it did not establish the office of coroner let alone create a court. It self-evidently applied to an existing institution. One significant change introduced by the 1960 Act was to relieve coroners of the responsibility of holding inquests or inquiries as to the cause of death of a person or the cause of a fire where a person had been charged with an indictable offence involving the issue of the cause of death or of the fire and, in the case where the inquest or inquiry was commenced and evidence given established in the opinion of the coroner that there was a prima facie case against a person for an indictable offence in which whether such a person caused the relevant death or fire was in issue, then the proceedings were to be immediately adjourned and the papers forwarded to the Attorney General awaiting the outcome of any other appropriate criminal proceedings. In Bilbao v Farquhar & Ors [1978] 1 NSWLR 528 the purpose of these changes was explained as follows (by Moffitt P at 535) -

It will be seen that s 28(1) protects a person, in respect of whom committal proceedings under the Justices Act, 1902 are pending, from exposure to publicity from evidence which might be given in the course of a coronial inquest, but would not be received in the course of committal proceedings, and from publicity from the findings of the coroner or coroner's jury. It will also be seen that, where no such committal proceedings are pending, so that the step has not been taken to pay a charge of the type in question, no protection is provided against the possibility of a charge later being laid and the coronial inquest continues until the evidence "has been taken". It is then only that s 28(2) intervenes to protect the person possibly to be charged by the decision of the Attorney-General. The protection given is only from the publicity of the finding of the coroner or the jury. If the coroner then forms a view of the evidence which might result in the Attorney-General so deciding, then s 28(2) intervenes to prevent the coroner taking the usual course of announcing his finding or taking the finding of the jury. Section 28(2)(ii) provides that in the circumstances he shall: ". . . forward to the Attorney General the depositions taken at the inquest, inquiry or magisterial inquiry together with a statement signed by the coroner, justice or justices setting forth the name of the person against whom a prima facie case for an indictable offence has, in his or their opinion, been established and particulars of such offence, . . ."

Section 29 of the 1960 Act required the findings to be made in writing but prohibited any indication or suggestion that any person was guilty of any indictable offence.

9 Part II of the 1960 Act provided for the appointment of coroners. Their jurisdiction is described in the following terms -

6. Every coroner, whether or not he is appointed to be a coroner in and for the State of New South Wales, and every deputy coroner, shall have and may exercise, subject to the provisions of this Act, jurisdiction throughout the State of New South Wales.

8. Every stipendiary magistrate shall, by virtue of his office, have the jurisdiction, powers and duties of a coroner throughout the State of New South Wales.

10 Part III of the Act concerned the jurisdiction of coroners in respect of inquests and inquiries and provided that in the specified circumstances the coroner "shall have jurisdiction" to hold an inquest (s 11(1)) or an inquiry (s 12(1)).

11 It is not necessary for me, because of the repeal in 1980 of this Act, to consider whether the provisions of Part II and Part III of the Act amounted to the creation of a coroner's court, but I am inclined to think that they did not. Rather there is an adoption of the jurisdiction hitherto exercised by coroners (Part II) and a variation of jurisdiction (Part III).

12 The 1980 Act, which, inter alia, repealed the 1960 Act seems to me to have brought about a significant change. Part 2 of the 1980 Act again provided for the appointment of coroners but stated his or her powers in very different language -

8. A coroner appointed under this Act, irrespective of whether he is appointed to be a coroner at a specified place in and for this State, has all the jurisdiction, powers or duties conferred or imposed on coroners by or under this Act. (Emphasis mine)

10. A stipendiary magistrate has, by virtue of his office, all the jurisdiction, powers and duties conferred or imposed on coroners by or under this or under any other Act. (Emphasis mine)

Part 3 of the Act is in relevantly similar terms to the 1960 Act.

13 The Coroners Amendment Act 1988 created the offices of State Coroner and Deputy State Coroner with extensive supervisory functions in connection with coronial services in New South Wales. In 1993 certain deaths must be the subject of inquests and must be heard by the State or Deputy State Coroner.

14 I am of the view that, if there were any residual common law jurisdiction possessed by coroners, the enactment of the 1980 Act had the effect of excluding it and giving to coroners an exclusively statutory jurisdiction, in other words, that ss 8 and 10 should be read as meaning that the coroners have the jurisdiction etc conferred by this Act and no others. This is not to say that the Act constitutes a code so far as coronial law and practice are concerned: see Maksimovich v Walsh [1983] 2 NSWLR 656 at 662. However, any other powers that he or she might have than those specifically granted in the Act must, as it seems to me, be incidental to them and not independent of them. Even so, the coroner's court, as such, is an institution of considerable antiquity, and existed in New South Wales from an early time. A coroner was described as "a judge of a court of record" by the then Chief Justice in 1968 (Chippett v Thompson 7 SCR at 355). If it was intended to abolish the court and reconstitute it (which I doubt) ss 8 and 10 of the 1980 Act were not apt to do so.

15 It was submitted by Mr Green QC that the coroner's court was a creature of statute. This may be so, but I do not think that such a metaphor is a useful mode of approaching the correct interpretation of "created by Parliament" in the definition of the Evidence Act 1995. It may well be that, especially having regard to the provisions which I have mentioned in the 1980 Act, the jurisdiction of the coroner's court has been so adjusted and regulated by the legislature that its ancient jurisdiction has either been adopted by Parliament or erased. However, considered at its simplest, the submission that the 1980 Act terminated the Court's previous jurisdiction and substituted a new jurisdiction which depended upon the statute although in many respects it was otherwise indistinguishable from the previous jurisdiction, is persuasive. Whether, however, the replacement of a mixed common law and statutory jurisdiction with a new statutory jurisdiction with the same or very similar attributes amounts to the creation of a new court in ordinary parlance is uncertain. Moreover, this question cannot be determined for present purposes in the abstract since, crucially, the issue is whether such a court is "created by Parliament" within the meaning of the definition of "NSW Court" in the Evidence Act 1995.

16 The process of reasoning which I have outlined demonstrates that, essentially, the plaintiff's contention involves a judgment as to the degree to which legislation affects the congeries of jurisdictional attributes of the coroner's court so that, at the end, a conclusion can be derived as to whether the process has reached the stage that it may be concluded that tje court in its present condition has been "created by Parliament". Such a conclusion requires detailed consideration of the history, and a judgment of the degree of adoption or replacement of the earlier non-legislative elements, of the institution. I do not think, however, that the requirement in the Evidence Act that a New South Wales court be "created by Parliament" was intended to refer to courts apt to fit that description only by the process of tortuous, subtle and perhaps uncertain reasoning of the kind which the plaintiff's submissions require. That is to say, I consider that the phrase "created by Parliament" means "created by Parliament as such" so that it is rather a formal definition than a descriptive one. If this be correct, it is clear from the legislation to which I have referred that the coroner's court is not created by Parliament in the sense of the definition.

17 Even if the conclusion stated above be incorrect, I do not consider that the termination of the prior jurisdiction of the coroner's court by the 1980 Act and its replacement involves the creation of a new court. Whilst the substitutionary process is undoubtedly very significant, its demonstration does not conclude the matter. On balance, I am of the view that the characteristic jurisdiction of the coroner's court was essentially continued although those functions which earlier depended upon the common law (and it may have been that most of them did) were adopted by the statute and given Parliamentary authority. However, I think that the court as an institution of public justice continued and its legislative history did not lead to the creation of a court by Parliament.

18 It is worthy of note, I think, in this context that the then Attorney General and Minister of Justice in his second reading speech on the Coroners Bill 1980 was entirely unconscious of the possible implications of the substituted jurisdiction since his speech omits all mention of it. The legislation flowed, in part, from a report of the New South Wales Law Reform Commission which stated -

Over the past fifteen years the [Coroners] Act [1960] has, for the greater part, served its purpose well. In some respects, it has been found a model worthy of adoption elsewhere. We are concerned here only with some blemishes and anomalies, rectification of which will add to its utility.

This was evidently the view shared by the Minister.

19 Of course, the existence of the coroner's court since the early days of the colony was notorious, as was its anomalous though obviously useful jurisdiction. The origin and history of the office of coroner are helpfully summarised in Waller, Coronial Law and Practice in New South Wales, 3rd ed (1994) pp 1-2.

20 In Mirror Newspapers Limited v Waller 1985 1 NSWLR 1, Hunt J (as he then was) adverted to the nature of the jurisdiction of the coroner, contrasting it with that of an ordinary court (at 16) -

The other section of the Coroners Act to which I referred in this context was s 33, which provides that the coroner is not bound to observe the rules of procedure and evidence applicable to proceedings before a court of law. The need for such a departure from the rules of procedure is obvious, because an inquest or an inquiry does not have parties, and there are no pleadings, charges or indictments which define the issue to be tried. Although usually there are legal representatives for the interested parties, the coroner must consider the interests not only of those parties but also of other persons as well. It is often left to the coroner himself to maintain a vigilant eye upon the relevance of evidence, and objections to the evidence are not always readily apparent. The absence of defined issues is of paramount importance in relation to this question. Their absence necessarily requires the adoption of different procedures to those applicable to proceedings before the ordinary courts of law.

At least one of the coroner's functions, in particular, would make an observance of the usual rules of procedure and evidence an impossibility. I refer to the coroner's residual investigatory function. Historically, the coroner investigated all cases of sudden death. He did so because his duties originally were fiscal in nature, and the unnatural death of a citizen could produce revenue to the Crown. According to the Statute De Officio Coronatoris, of 1276, the coroner was obliged to determine where such a person was slain, who was present and who was guilty. Since the establishment of a regular police force, this investigatory function of the coroner has been largely, but not entirely, superseded. According to a report of the Chief Justice's Law Reform Committee, submitted in 1964 (and published as Appendix B to the Report of the Law Reform Commission on the Coroners Act, 1960 (LRC 22 1975) a coroner's inquest is still used as an aid to the police, in order to afford to them an opportunity of furthering their investigations by the examination and perhaps cross-examination of witnesses under oath (par 3 at 88). That was the nature of the inquiry which the coroner was conducting in the present case in the "preliminary part" of the inquest into the death of Mrs Watson, and which was the subject of the prohibition order pursuant to s 44(1).

21 Considerations such as those mentioned by his Honour demonstrate convincingly that a scheme of evidence such as that provided by the Evidence Act 1995 would be inappropriately imposed on a coroner's court. Indeed, it was never intended to override any other legislative scheme. Section 8 of the Act makes this clear by specifically providing, "This Act does not affect the operation of the provisions of any other Act.

22 I have set out above the provisions of s 33 of the 1980 Act, the effect of which is thus expressly preserved. It would be surprising if, of the provisions of the Evidence Act 1995, the only one required to be applied in the coroner's court were s 128. In one sense, of course, s 128 of the Act is not inconsistent with s 33 of the 1980 Act since, if a certificate were capable of being given under s 128, it would mean that the evidence would no longer tend to incriminate the witness and accordingly s 33 could be complied with even if the witness were required to answer the relevant question. However, I consider that the better view of s 33 is that it is in substance inconsistent with the procedure for giving certificates set out in s 128 of the Act. Accordingly, s 8 of the Act has the effect of rendering s 128 inapplicable to coroner's courts at all events.

23 It was not disputed that the objection by the second defendant was well taken but as this matter was not elaborated I do not think it necessary or desirable to say more about it than that there seems to have been a proper, though somewhat slight, basis for accepting the propriety of the objection. Having regard to the way in which the matter was argued before me I think I should observe that I do not see any error in the manner in which the coroner determined that, on the assumption that he had the jurisdiction to apply s 128 of the Act, he would decline to give a certificate. In this regard the consideration referred to in R v Coroner; ex parte Alexander 1980 [VR] 731 at 738 provides a further ground for the coroner's exercising the discretion to decline a certificate.

24 Accordingly, the declarations sought must be refused. By consent, no order as to costs with liberty to apply.

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LAST UPDATED: 23/04/1999