FEDERAL COURT OF AUSTRALIA

Helicopter Resources Pty Ltd v Commonwealth of Australia (No 2) [2018] FCA 991

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    Order 1 made by Griffiths J on 30 April 2018 be discharged.

3.    The applicant pay the respondents’ costs of and incidental to this proceeding, including:

(a)    the costs of the interlocutory application heard and determined by Griffiths J;

(b)    costs of the second respondent that have been, or will be, paid by the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This proceeding concerns an inquest by the Chief Coroner of the Australian Capital Territory (ACT) into the manner and cause of death of a helicopter pilot, Captain David Wood, on 11 January 2016 in the Australian Antarctic Territory near the Davis Station. The inquest relevantly raises questions about the responsibility of Captain Wood’s employer at the time, Helicopter Resources Pty Ltd, and the responsibility of the Commonwealth, for the circumstances and events that may have caused or contributed to the fatal incident. Both Helicopter and the Commonwealth have also been charged with summary work health and safety criminal offences arising out of the incident that resulted in Captain Wood’s death, and also arising out of two prior, non-fatal, incidents in Antarctica. This proceeding concerns the impact of the inquest on the criminal proceedings. Helicopter seeks to prevent the inquest being a means by which the prosecution or the Commonwealth may obtain what it describes as improper forensic advantages in the criminal proceedings.

2    The inquest has mostly, but not entirely, concluded. The final witness to be called is Helicopter’s Chief Pilot, Mr David Lomas, although the possibility remains for one other witness to also be called. It is Helicopter’s position that Mr Lomas cannot be required to give evidence until the criminal proceedings against it have been concluded. It says that to compel Mr Lomas to give evidence would cause it prejudice in the criminal proceedings and undermine the accusatorial nature of the criminal process. This is based in part on an argument that, given the special role and responsibilities under federal aviation law that Mr Lomas has within Helicopter as Chief Pilot, Mr Lomas’ evidence in the inquest may result in the prosecution being improperly armed with evidence and admissions attributable to Helicopter in the criminal proceedings. It is also said that the calling of Mr Lomas will result in the Commonwealth, as co-defendant, having the improper advantage of exploring the evidence he might give if he were to be called as a witness in the Commonwealth’s defence of the criminal proceedings. Having regard to the principle of legality, it is said that the Coroner does not have power to compel Mr Lomas as a witness if it would otherwise result in impermissible interference with the due administration of criminal justice.

3    The Coroner has refused to rule out calling Mr Lomas or to give any anticipatory direction limiting Mr Lomas’ evidence prior to him being called; to the contrary, a subpoena was issued to compel his attendance, although it has since lapsed. There is little reason to doubt that a fresh subpoena will be issued to again compel Mr Lomas’ attendance if nothing is done to prevent that happening.

4    By this application for judicial review, Helicopter seeks the intervention of this Court with the ultimate objective of preventing Mr Lomas from giving evidence until the criminal proceedings against it have concluded.

5    The Commonwealth, which is named as the first respondent in the proceedings, opposes Helicopter’s application and is the sole active contradictor. The Coroner, who is the third respondent, has filed the usual submitting appearance in the proceeding. So too has the second respondent, Captain Wood’s widow, Ms Mary Macdonald.

6    On 30 April 2018, Griffiths J made interim orders preserving the status quo upon the usual undertaking by counsel for Helicopter as to damages: Helicopter Resources Pty Ltd v Commonwealth of Australia [2018] FCA 595.

7    For the reasons that follow, Helicopter’s application for final relief must be dismissed with costs.

Overview

8    The inquest commenced on 19 September 2017. By virtue of s 13(1) of the Coroners Act 1997 (ACT), it is an inquest into the manner and cause of Captain Wood’s death. It is common ground that the Australian Antarctic Territory falls within the jurisdiction of the ACT Coroner’s Court by the operation of s 6 and/or s 10 of the Australian Antarctic Territory Act 1954 (Cth). At the conclusion of the inquest, the Coroner is required, among other things, to comment on any matters of public safety that may arise from the inquest: s 52, Coroners Act. The bulk of the evidence was taken between the commencement of the inquest and 11 October 2017.

9    On 20 December 2017, by information and summons laid on behalf of the Commonwealth work health and safety regulator, Comcare, in the ACT Magistrate’s Court, Helicopter was charged with three summary criminal offences under the Work Health and Safety Act 2011 (Cth) in relation to three separate incidents. One of those charges alleges contraventions that arise directly out of the circumstances giving rise to Captain Wood’s death. The Commonwealth (as manifested by the Australian Antarctic Division of the Commonwealth Department of the Environment and Energy) has also been charged with three summary offences in relation to the same three incidents. The statement of facts for both criminal proceedings is the same. All of the charges are apparently being prosecuted by the Commonwealth Director of Public Prosecutions (CDPP) on behalf of Comcare as the informant.

10    Several observations may be made, in broad terms, and for present purposes only, about the responsibilities of the participants in the inquest who have been charged and the bearing that may have on the criminal proceedings they face:

(1)    the Commonwealth may be seen to have been generally responsible for the conditions on the ground at the Davis Station and other areas relevantly in use in the vicinity;

(2)    Helicopter, as the contracted supplier of helicopter services to the Commonwealth since 1975, was generally responsible for matters of aviation safety in relation to the performance of its contractual obligations;

(3)    there was, inevitably, crossover between the two areas of responsibility;

(4)    it is fair to say that Helicopter and the Commonwealth have, or are likely to have, a different position in both the inquest and in the criminal proceedings as to what was the cause of, and who has the responsibility for, various aspects of the circumstances which gave rise to Captain Wood’s death;

(5)    the resolution of the competing stances of Helicopter and the Commonwealth:

(a)    is likely to have a material bearing on the allocation of responsibility for the different factors that contributed to Captain Wood’s death, both at the inquest and in the criminal proceedings; and

(b)    may be seen to be pertinent to the determination of guilt or otherwise of at least the charge against Helicopter and the charge against the Commonwealth in relation to the circumstances giving rise to Captain Wood’s death.

11    Helicopter’s Chief Pilot, Mr Lomas, is proposed to be called as a witness at the inquest in accordance with a request made by the Commonwealth. A detailed statement of Mr Lomas is already in evidence before the Coroner. The Commonwealth has foreshadowed cross-examining Mr Lomas on topics that at least overlap with key aspects of the subject matter of the criminal proceedings, a course that might result in evidence being given that would be helpful, if made available to the CDPP or to the Commonwealth, for use in those proceedings unless effectively curtailed in some way. Hearing that evidence could at least potentially give the Commonwealth a forensic advantage in the criminal proceeding, and thereby limit Helicopter’s forensic choices in the criminal proceeding of the kind discussed in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [124]; see also Hammond v the Commonwealth (1982) 152 CLR 188 at 198.

12    The Coroner acceded to an application by the Commonwealth to make Mr Lomas available for cross-examination at the inquest and refused an application by Helicopter to adjourn the inquest until the criminal proceedings against it have concluded, her Honour’s reasons being reproduced at [20] below. Shortly after delivering those reasons, her Honour issued a subpoena for Mr Lomas to attend and give evidence. Her Honour subsequently refused to make any direction as to his evidence in advance of the resumed inquest hearing.

13    As noted above, Helicopter objects to Mr Lomas being called and cross-examined on behalf of the Commonwealth before the criminal proceedings have concluded. The Coroner’s refusal to rule out him being called, or to direct in advance that the questions he may be asked be restricted to topics that will not have a bearing on the criminal proceedings, has triggered the commencement of this proceeding.

14    In his capacity as Chief Pilot, Mr Lomas has specific responsibilities imposed by statute and related regulations under federal aviation law. This includes principal responsibility for various safety issues. It is relevantly provided under the Civil Aviation Order 82.0 (which may also be referred to as s 82.0 of the Civil Aviation Orders, made under ss 28BA(1)(b) and 98(4A) of the Civil Aviation Act 1988 (Cth)), in Appendix 1 that:

(1)    “A person must not be appointed as, or act as, a Chief Pilot unless the person’s appointment has been approved in writing by CASA [the Civil Aviation Safety Authority] after application in writing by the operator”: cl 1.1;

(2)    “The Chief Pilot for an operator is to have control of all flight crew training and operational matters affecting the safety of the flying operations of the operator”: cl 2.1; and

(3)    “A Chief Pilot, in exercising any responsibility, may delegate duties to other members of the operator’s staff, but may not delegate training and checking duties without the written approval of CASA”: cl 3.

There has been no delegation by Mr Lomas in accordance with cl 3.

15    Helicopter relies on the above statutory responsibilities to contend that, on those matters, Mr Lomas is, in effect, its guiding mind, although it cannot and does not go so far as to contend that he would be giving evidence other than in his personal capacity and does not suggest that he would be formally authorised to give evidence on its behalf, that being a matter within its control. Rather, reliance is placed by Helicopter on the terms of s 87 of the Evidence Act 2011 (ACT), which provide that admissions by a person made with the authority of a party are to be admissible against that party, which may be based upon general authority rather than specific authority. As discussed further below, it is far from clear or certain that s 87 would render the evidence of Mr Lomas admissible against Helicopter without him being given authority to speak on its behalf. However, it is probably enough for Helicopter’s present purposes that it may be directly or vicariously responsible for Mr Lomas’ past actions or omissions arising in his official capacity. On any view, Mr Lomas ultimately being compelled to give evidence at the inquest may reveal to the Commonwealth at least details of what he did or did not do at the relevant times prior to Captain Wood’s death. That is at least likely to be an advantage to the Commonwealth in deciding whether – and, if so, how – to defend the criminal charges against it.

16    Mr Lomas has not been charged and does not bring any proceeding to prevent him being called to give evidence at the inquest. There is no evidence that charging him is in contemplation, but also no evidence that this has been ruled out. As is emphasised by the Commonwealth, it is unclear what exactly will happen at the point at which Mr Lomas would, if permitted, be called as a witness. There is no evidence as to his attitude towards giving evidence. The Commonwealth points out that he may enter the witness box and refuse to answer any questions on the ground that the answers may tend to incriminate him. In those circumstances, there is then a question of whether he will nonetheless be required to give evidence. That possibility gives rise to consideration of the operation of s 51B of the Coroners Act, considered in some detail below at [134].

17    As a practical matter, it is unlikely that the conclusion of the inquest would be left in abeyance pending the completion of the criminal proceedings, especially given that Mr Lomas has already provided a reasonably detailed statement that is before the Coroner. The practical effect of Helicopter’s application succeeding may therefore be that Mr Lomas would never give evidence at the inquest. The Coroner would therefore lose the benefit of any additional evidence that Mr Lomas could give that might be relevant to the manner and cause of Captain Wood’s death and, to that extent, would be impeded in fully performing her Honour’s functions under the Coroners Act. It is not possible to readily ascertain how important that evidence would be to the inquest, but it may be inferred that the Coroner considered it important enough to accede to the Commonwealth’s request that he be called as a witness to answer questions, rather than to simply rely upon his statement already in evidence.

The decision of the Coroner

18    The Coroner’s reasons for declining to grant the adjournment sought by Helicopter warrant reproduction in full, as they are not especially lengthy and are, in any event, important in understanding and considering aspects of the present proceeding as pleaded and argued.

19    After receiving detailed written submissions on behalf of Helicopter, the Commonwealth and Captain Wood’s widow, her Honour made her decision on 12 April 2018, and provided reasons on 16 April 2018. A key part of the Commonwealth’s case in opposing the adjournment, which Helicopter relies upon in this Court, was that Mr Lomas was an important witness for reasons that included his capacity to ventilate the contribution, if any, of acts or omissions on the part of Helicopter to Captain Wood’s death. Plainly enough, that is likely to be an issue in the criminal proceedings.

20    After briefly outlining the history of the inquest, her Honour said in her reasons:

5.    Helicopter Resources makes application for an adjournment pending resolution of the criminal prosecution against it. Captain Wood’s wife, Ms Mary Macdonald, and the Commonwealth submit that the hearing should continue to finalisation.

6.    For the reasons which follow, I refuse the application for an adjournment.

7.    Section 36 of the Coroners Act 2011 (ACT) gives the Court a general discretion to adjourn in the following terms:

A Coroner may, by order made in or outside the court, adjourn a hearing from time to time and from place to place.

This is a broad general discretion, to be exercised consistent with the objects of the Act, and otherwise fettered only by common-law principles of fairness.

8.    Section 58 of the Act provides the circumstances in which the inquest must be suspended having regard to the likelihood of prosecution for an indictable offence. In the Commonwealth context, an indictable offence is one that carries a maximum of 12 months imprisonment. This section is therefore not applicable in that the prosecution commenced in related to the death of Captain Wood is for a summary offence which attracts a financial penalty only, albeit one of up to $1.5 million.

9.    Helicopter Resources submitted that there is a further general discretion in s58(6) which provides:

A coroner must not continue holding an inquest or inquiry if satisfied that the inquest or inquiry should not be continued.

However, given its context, I am satisfied that this subsection relates only to the coroner’s decision as to whether to continue at all with an inquest on inquiry which was adjourned pursuant to s58 and does not create a general discretion beyond that provided for in s36.

10.    Helicopter Resources makes further submissions on a number of grounds:

a.    that the statutory prohibition on proceeding with an inquest where party is subject to a prosecution for an indictable matter should, in appropriate cases, be extended as a matter of principle to cases in which criminal prosecution attracts a potentially significant penalty, such as this one;

b.    that this should be the case because of the risk of inconsistent findings between the inquest and the criminal Court which risks bringing the administration of justice into disrepute;

c.    running parallel proceedings creates the risk of potential prejudice to the defendant in the criminal prosecution, particularly in circumstances where the corporation, as opposed to its employees, is unable to exercise a right to silence;

d.    That Helicopter Resources is financially and practically disadvantaged in being required to participate in the coronial hearing as well as respond to a criminal prosecution having regard to its small size.

11.    Ms Macdonald opposes the application for an adjournment on what I discern to be three bases:

a.    that Helicopter Resources and the Commonwealth were aware of the potential for criminal prosecution having regard to their knowledge of Comcare’s investigation into the circumstances of Capt Wood’s death well before commencement of the coronial hearing and made no objection prior to commencement of the hearing;

b.    that those Helicopter Resources employees who gave evidence at hearing were entitled to avail themselves of the statutory protection in relation to self-incrimination when they gave evidence; and

c.    that suspension of the inquest would cause a delay which would undermines that object of the Act which requires regard to the interests of Capt Wood’s children in having all reasonable questions about the circumstances of his death answered in a reasonable and timely manner.

12.    The Commonwealth also opposes the application for an adjournment on the following bases:

a.    an adjournment is likely to lead to lengthy delay in finalisation of the inquest which may impact upon cost to the parties and the quality and accuracy of findings;

b.    it is consistent with the objects of the act that the interests of the deceased’s immediate family be recognised, those interests having been addressed in Ms Macdonald’s submissions;

c.    that s.58 of the Coroners Act does not apply and in fact recognises an important distinction between indictable and summary offences;

d.    any summary matter will be determined by magistrate as trier of fact obviating the risks that the outcome of the prosecution may be infected by publicity about the coronial hearing in the same way it might if a jury were required to determine an indictable matter;

e.    it is significant that the defendant in the criminal prosecution is the corporation not the remaining employee witness, Mr Lomas. Helicopter Resources would not be required by a continuation of the hearing to put forward any information which might prejudice its defence of the criminal prosecution and Mr Lomas has the right to access protection against self­incrimination in both proceedings;

f.    the Commonwealth concedes that significant hardship to Helicopter Resources is a theoretically relevant consideration in the application for an adjournment but denies that there is evidence of such. Costs relating to the inquest had largely been incurred and would if anything be increased by further delay and there is no significant overlap of timetabling in respect to the coronial and criminal matters;

g.    Helicopter Resources has failed to identify how it is disadvantaged by continuation of the hearing.

13.    Historically, in the Coroners Courts of England and Wales, the coroner would consider the question of criminal responsibility for the death other than in situations where charge of murder or manslaughter had been preferred and it was desirable practice that no criminal prosecution commence, or at least not conclude, until the Coroners Court had decided the question of criminal responsibility. This was to avoid the possibility of two jurisdictions arriving at “incongruous results” (re Beresford (1952) 36 Cr. App. R 1 per Devlin J). The traditional position has been refined in the Australian Capital Territory in sections 58 and 58A of the Coroners Act but does not require that any particular approach is to be taken in relation to summary only criminal prosecutions.

14.    I accept that even when section 58 of the Act does not apply, that summary criminal proceedings are instituted against one of the parties is a relevant consideration in the exercise of the Court’s general discretion in relation to adjournment of an inquest. I have considered that issue. The remaining witness is Mr Lomas. He is not subject to a criminal prosecution nor has there been any suggestion that he will be. His interests and those of Helicopter Resources are not the same. He is a compellable witness in both jurisdictions. His interests, as opposed to those of his employer, insofar as they may be affected by being required to give evidence in both fora, can be protected by asserting his rights in respect to self-incrimination. I reject the submission that Helicopter Resources’ defence will be compromised by Mr Lomas giving evidence.

15.    In the event that the inquest findings are delivered before the outcome of the criminal prosecution is decided, they will not bind the magistrate deciding the criminal prosecution.

16.    As to the impact of any further delay in finalisation of the inquest, I note that there has already been a significant delay since Capt Wood’s death arising from both the complexity of the matter and court resourcing limitations. Whilst further delay is likely to have some impact on the cost of proceedings, parties will in any event need to reacquaint themselves with evidence already given. Witness impressions have already been compromised by the passage of time although they may be compromised further with additional delay. By far the greatest impact of any delay is that on the family of Capt Wood. Such impact has been asserted and could in any event be inferred. In so far as it can be ameliorated, consistent with fairness to the parties, it should be.

17.    The hearing in this inquest will resume on 1 May 2018 at 10 AM.

21    By letter to the Coroner’s Office dated 20 April 2018, the solicitors for Helicopter referred to the decision to continue the inquest and sought a direction that the examination of Mr Lomas would not extend to the matters outlined in the criminal charges and the prosecution’s statement of facts, failing which proceedings would be commenced in this Court (as subsequently happened four days later). By an email sent on behalf of the Coroner the same day, the parties were advised that her Honour did not intend to make the direction sought in advance of the resumed hearing, noting that it was “impossible to predict what questions might fall foul of such a direction yet be otherwise appropriate”.

22    In substance, by refusing to make the direction sought, the Coroner has declined to exercise the discretion sought when not all the facts are known and the question of whether Mr Lomas should in fact be required to testify has not been determined by her Honour. This Court cannot proceed otherwise than upon the assumption that the Coroner will exercise her powers and discretion appropriately when the time comes, subject only to the issues raised in this proceeding. That approach is supported by the advice provided on behalf of the Coroner on 1 May 2018, reproduced below. It is not appropriate beyond that to pre-empt what may occur if Helicopter is not otherwise entitled to relief based on the existing facts and circumstances, including what has already taken place at the inquest.

23    The only reason why the inquest did not resume on 1 May 2018 was the intervention of this Court by way of interlocutory relief pending the final determination of this proceeding.

24    On 1 May 2018, the Coroner’s office advised the parties by email as follows:

Any further progress in the inquest will be re-evaluated following final determination of the injunction application by Helicopter Resources. I understand that the resumed hearing is expected to take place on 29 May subject to today’s case management hearing.

In the event that a final injunction is granted, I will invite submissions from the parties as to whether the preference is to finalise the matter on the written statements of Mr Lomas and Dr Gale (subject to the terms of the injunction) or to await finalisation of the criminal process.

In the event that the application for an injunction is refused on the next occasion in the Federal Court, I will convene a directions hearing to timetable resumption of the hearing.

25    Helicopter makes various complaints about the Coroner’s reasons for refusing the adjournment. It submits that those reasons did not meaningfully grapple with any of the authorities upon which its position was based. It submits that the Coroner rejected the submission that its defence in the criminal proceedings would be compromised by her Honour’s reference, at [14]-[15], to two matters that formed no part of its submission, namely, the protection that may be afforded to Mr Lomas personally in respect of self-incrimination and the conclusion that any inquest findings would not bind the magistrate in deciding the criminal prosecution, in circumstances where no submission was made based on any asserted privilege against self-incrimination, but, rather, based on the asserted effect of the inquest on the accusatorial nature of the criminal process. Helicopter therefore submits that the Coroner disposed of the adjournment application by reference to matters that were not raised by Helicopter, without addressing the matters that were raised.

26    In terms of the likelihood of material emerging from the inquest assisting in the prosecution, Helicopter makes some complaints about the nature of the communications that have taken place between the Coroner’s office and the Comcare investigation team, by which transcript of the inquest and exhibits have been made available. The Commonwealth counters by pointing to the Coroner’s refusal to make available material that has not yet become evidence. That collateral dispute neither helps nor hinders either party in this proceeding on the determinative issues and, as such, requires no further consideration.

27    Helicopter seeks to take issue in some detail with the approach taken by the Coroner and her Honour’s reasons. While that approach is understandable, by and large, it is not a useful way to proceed because of the high points of principle that are raised and relied upon. If the Coroner’s decision was wrong on a fundamental point of principle, then it is liable to be set aside or otherwise made the subject of orders that would make the ultimate decision reached inoperative, whatever the reasons given. Conversely, if the decision itself was not contrary to principle, an error in the detail of the reasoning by which it was reached, including, in particular, a failure to grapple fully with Helicopter’s submissions, would not be a sufficient reason to intervene. This proceeding is best determined by reference to the points of principle upon which Helicopter relies, with consideration of the detail of what happened before the Coroner being confined to illumination or framing of those issues. It is not an appeal from her Honour’s decision.

28    What really matters is a clear identification of the core and substance of Helicopter’s basis for seeking the intervention of this Court, as elaborated in the pleadings. The written submissions for Helicopter identify that basis as follows (omitting court book references):

96.    Had the factual findings which a rational decision maker was compelled to make been made two consequences followed.

97.    First, admissions made by Mr Lomas at the inquest were likely to be admissible against [Helicopter] in the criminal proceedings.

98.    Second, any examination of Mr Lomas at the inquest would be available to inform the Commonwealth and possibly the prosecutor in the criminal proceedings as to the risks of either compelling Mr Lomas to give evidence in the criminal proceedings or of cross-examining Mr Lomas on any particular topic in the criminal proceedings.

99.    Each of those matters were sufficient to establish prejudice to [Helicopter] in the conduct of its defence of the criminal proceedings.

100.    Further, each was sufficient to demonstrate that the Commonwealth as co-accused, would thereby obtain an advantage in the criminal proceedings which was not available to it through the Court processes applicable to the criminal proceedings.

101.    Following the Coroner’s refusal of an adjournment [Helicopter] sought a direction that any examination of Mr Lomas would not extend to the matters outlined in the Information and Summons and Statement of Facts filed in the criminal proceedings.

102.    The learned Coroner refused to make such a direction with Reasons only consistent with her having concluded that it was not inappropriate that such questions be asked.

103.    On 19 April 2018 the Coroners Court caused to be served a Subpoena dated 12 April 2018 for Mr Lomas to attend to give evidence at the inquest.

29    The submission at [102], reproduced above, should not be accepted as it cannot yet be determined what questions would, in fact, be permitted or rejected, or, indeed, whether Mr Lomas will necessarily be required to give evidence at all, even if that might be the most likely outcome if he is called.

The relief sought as pleaded

30    The detail of the relief sought by Helicopter, and the basis for that relief, as pleaded in an originating application and further amended statement of claim (FASOC), need to be considered in the context of the written submissions reproduced at [29] above, to avoid losing sight of the substance in all of the pleading detail.

31    Helicopter, by an originating application, seeks the following relief, plus costs:

1.    Order setting aside the decision of the Third Respondent to require that David Lomas be required to give evidence in the inquest into the death of Captain David Wood CD9 of 2016 prior to finalisation of the prosecution of the Applicant in proceedings in the ACT Magistrates Court CC44152, 44153 and 44154.

2.    In the alternative to Order 1 a writ in the nature of certiorari issue quashing the decision of the Third Respondent to require that David Lomas be required to give evidence in the inquest into the death of Captain David Wood CD9 of 2016 prior to finalisation of the prosecution of the Applicant in proceedings in the ACT Magistrates Court CC44152, 44153 and 44154.

3.    Order prohibiting the Third Respondent from requiring that David Lomas be required to give evidence in the inquest into the death of Captain David Wood CD9 of 2016 prior to finalisation of the prosecution of the Applicant in proceedings in the ACT Magistrates Court CC44152, 44153 and 44154.

4.    In the alternative to Order 3 a writ in the nature of prohibition issue prohibiting the Third Respondent from requiring that David Lomas be required to give evidence in the inquest into the death of Captain David Wood CD9 of 2016 prior to finalisation of the prosecution of the Applicant in proceedings in the ACT Magistrates Court CC44152, 44153 and 44154.

32    The FASOC pleads facts and circumstances that are largely admitted by the Commonwealth. Although the Commonwealth takes issue with the characterisation of the evidence sought to be adduced from Mr Lomas as being relevant to the criminal charges in the manner pleaded, it does not dispute that there is a relevant overlap in the issues proposed to be ventilated in cross-examining him, and the issues in the criminal proceedings. Those facts and circumstances are adequately summarised above. Helicopter pleads the lack of capacity of the prosecutor in the criminal proceedings or Comcare as investigator to now compel Mr Lomas to answer questions or provide documents except by resort to the criminal court’s processes. This limitation is not disputed by the Commonwealth.

33    Helicopter pleads at [34] of the FASOC, and the Commonwealth admits, that the Coroner decided that Mr Lomas was required to give evidence at the resumed inquest. The decision is described in Helicopter’s written submissions as the refusal of the adjournment request on 12 April 2018 (with reasons published on 16 April 2018) and the issue of the subpoena on 19 April 2018. In light of the Commonwealth’s admission as to the primary characterisation of the Coroner’s decision, it is not necessary for Helicopter to rely upon, nor for this Court to adjudicate upon, an alternative characterisation of the Coroner’s decision. However, as will be seen, Helicopter seeks to characterise the decision to require Mr Lomas to give evidence with undue complexity, given the relatively simple powers that the Coroner exercised and the early stage at which her Honour was being asked to fix the course that the inquest would take once Mr Lomas appeared to give evidence.

34    Helicopter then pleads the following basis for the relief sought as follows, each of which is denied by the Commonwealth, with some degree of nuance at parts which does not need to be elaborated upon:

36.    The applicant is aggrieved by the decision [to require Mr Lomas to give evidence at the resumed inquest] because compelling Mr Lomas to give evidence at the inquest will provide to the First Respondent opportunities not available to it in the criminal process:

a.    to seek admissions which will be admissible against the Applicant in the proceeding on the Information without the need for the First Respondent to call Mr Lomas in those proceedings; and

b.    assess, through the conduct of a compulsory cross examination, the risks to the First Respondent in compelling Mr Lomas to give evidence for the First Respondent and against the interests of the Applicant in the proceeding on the Information.

37.    Further the Applicant is aggrieved by the decision [to require Mr Lomas to give evidence at the resumed inquest] because compelling Mr Lomas to give evidence at the inquest may provide to the prosecutor on the Information opportunities not available to him in the criminal process, and under s.155 of the Work Health and Safety Act 2011 (Cth), to:

a.    rely upon admissions admissible against the Applicant in the proceeding on the Information without the need for the prosecutor to call Mr Lomas;

b.    enable the prosecutor to assess the risks to the prosecution case of compelling Mr Lomas to give evidence against Applicant in the proceeding on the Information when Comcare had not availed itself of the opportunity to make that assessment by exercise of its powers under s.155 of the Work Health and Safety Act 2011 (Cth) at a time when it was lawful for it so to do.

38.    The decision [to require Mr Lomas to give evidence at the resumed inquest] was not authorised by the enactment pursuant to which it was purported to be made.

Particulars

a.    The enactment was the Australian Antarctic Territory Act 1954 (Cth) (AAT Act) or in the alternative the Coroner’s Act 1997 (ACT) as an instrument made under the AAT Act.

aa.     The enactment was a general enactment which did not confer power to compulsorily question a person who was the guiding mind of a corporation on matters the subject of criminal charges that had been laid against that corporation.

39.    The decision [to require Mr Lomas to give evidence at the resumed inquest] was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

Particulars

a.    The Applicant repeats particular 38 a

…

c.    The Third Respondent made the decision failing to take into account a relevant consideration in the exercise of the power by rejecting a submission that the Applicant’s defence of the proceeding on the Information would be compromised by Mr Lomas giving evidence:

i.    The Applicant repeats and relies upon the allegations in paragraph 36 and 37 above.

d.    The decision constituted an exercise of discretionary power that was so unreasonable that no reasonable person could have exercised the power; or in the alternative in a way that constitutes abuse of the power:

i.    the decision depended upon rejection of the submission that the Applicant’s defence of the proceeding on the Information would be compromised by Mr Lomas giving evidence when that rejection was irrational so as to render the refusal of the adjournment unreasonable.

40.    The decision [to require Mr Lomas to give evidence at the resumed inquest] involved an error of law.

Particulars

a.    The Applicant repeats particular 38 a

b.    The Third Respondent construed s.58(6) of the Coroner’s Act as having no application except where a Coroner decides to terminate an inquest when the Third Respondent should have found that s.58(6) created a duty to not hold an inquest at a time when the Coroner was satisfied that by reason of concurrent criminal proceedings the inquest should not be continued at that time.

c.    The learned Coroner erred by holding at [14] that Mr Lomas’ interests insofar as they may be affected by being required to give evidence in both the inquest and criminal proceedings could be protected by his asserting in the inquest his rights in respect to self-incrimination. The learned Coroner should have held that s.51B of the Coroners Act, properly construed, did not authorise the Third Respondent to require Mr Lomas to give evidence where there existed a real risk that that evidence would result in his incriminating himself in respect of offences under a Federal law or under a law of another State or Territory.

41.    Requiring that Mr Lomas give evidence at the resumed inquest, including on matters alleged in the Information, on and from 1 May 2018 was not authorised by the enactment pursuant to which the Third Respondent proposes to impose that requirement.

Particulars

The Applicant repeats the particulars to paragraph 38.

42.    Requiring that Mr Lomas give evidence at the resumed inquest, including on matters alleged in the Information, on and from 1 May would be in improper exercise of the power conferred by the enactment pursuant to which that requirement was proposed to be imposed.

Particulars

The Applicant repeats the particulars to paragraph 39.

…

Jurisdictional Error

44.    The decision [to require Mr Lomas to give evidence at the resumed inquest] was in excess of the jurisdiction of the Third Respondent by reason of each or any of the errors alleged in paragraphs 38, 39 and 40 above.

45.    In the alternative, unless this Court otherwise decides the Third Respondent proposes to exceed her jurisdiction by requiring Mr Lomas to give evidence at the resumed inquest, including on matters alleged in the Information in excess of its jurisdiction.

Particulars

The Applicant repeats and relies on the allegations and particulars to paragraphs 41 to 43 above.

35    The centrepiece of Helicopter’s case, reflected in [36] and [37] of the FASOC reproduced above and developed in oral and written submissions, is that the calling of Mr Lomas poses a real risk to the administration of criminal justice and would therefore constitute a real danger of contempt of court taking place. The parties agree that, consistent with the principle of legality, the Coroner’s powers do not authorise the Coroner to act in a way that would otherwise constitute a contempt unless her Honour is clearly authorised to do so by the Coroners Act.

36    The first issue that arises is whether the calling of Mr Lomas as a witness would constitute an interference with the due administration of criminal justice amounting to contempt of court, or otherwise as an impermissible interference with the criminal proceedings. If so, and only if so, the second issue that arises is one of statutory construction. That is, if the requisite real risk of interference is established, the Court must then consider whether Parliament has provided, with necessary legislative clarity, that the Coroner has the power to nonetheless require Mr Lomas to give evidence despite that otherwise constituting a contempt of court. It is common ground that this Court has jurisdiction and power to intervene if properly called for.

First main issue: whether requiring Mr Lomas to give evidence at the inquest would constitute an interference with the due administration of criminal justice

Helicopter’s submissions on interference

37    Helicopter submits that to require evidence from Mr Lomas to be given at the inquest would result in impermissible interference with the criminal proceedings in two main ways:

(1)    by resulting in the Commonwealth, as co-accused, having the improper advantage of exploring and assessing the evidence that Mr Lomas might give if he were to be called as a witness in the Commonwealth’s defence of the criminal proceedings; and

(2)    by arming the prosecution with evidence and admissions that are attributable to Helicopter in the criminal proceedings.

Improper advantage to the Commonwealth

38    Helicopter submits that to require evidence from Mr Lomas to be given at the inquest creates a risk of real, practical prejudice to it, and an advantage to the Commonwealth as co-defendant, which would not arise in the criminal process. The nature of the prejudice that Helicopter identifies and relies upon is as follows.

39    It is accepted that the Commonwealth could compel Mr Lomas to give evidence in its case in the criminal proceedings, in the absence of his examination at the inquest. However, Helicopter points out that, in the ordinary course, the Commonwealth could only do so by calling him without any knowledge as to what he would say on the very questions upon which they seek to cross-examine him at the inquest. By Mr Lomas being compelled to give evidence at the inquest, the Commonwealth would therefore be provided with an opportunity not available in the criminal justice system to explore the testimonial evidence that he would give and better assess the risk of calling him ahead of having to make such a decision. It is asserted that the Commonwealth would thereby obtain a benefit in the criminal proceedings not provided by the criminal justice system. This is a recurrent theme in Helicopter’s case – the prejudice in having a witness who is not a defendant, although closely associated with a defendant, being compelled to give evidence in other proceedings prior to the hearing of a criminal charge.

40    Helicopter also submits that there is a real risk of prejudice to it in being denied the benefit of calling its witness in chief in its own case, relying upon the comments of Heydon J in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [117], which were not adopted by any other member of the High Court. With respect to Heydon J in Kirk, the circumstance of a witness being called by one party or another on the defence side in criminal proceedings is not particularly unique, or even unusual. Indeed, if a witness is likely to be called in any event, which may well be the case given Mr Lomas’ position and responsibilities, Helicopter might be seen to have a strong interest in not being the party who calls him, because of the real and substantial forensic advantage in being able to cross-examine with leading questions, as opposed to leading only evidence in chief. It seems quite likely that the prosecution will be compelled to call Mr Lomas: see R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 on the prosecution’s ethical obligations in that regard. It follows that very little weight can be attached to this submission. Ultimately, it cannot affect the determination required to be made.

41    Helicopter submits that while his employment is current, Mr Lomas owes it a contractual duty of fidelity that extends to not disclosing confidential information or using it in a way that could be detrimental to his employer. It is not apparent where this argument takes matters as there is no material distinction in this respect between Mr Lomas being called to give evidence at the inquest and being called to give evidence in the criminal proceedings. It is not apparent how this constitutes any relevant interference if that is not otherwise established.

42    Helicopter points out that the procedures for the hearing and determination of the summary charges brought against it and the Commonwealth do not provide any party with an opportunity to depose an employee of another party. While that is undoubtedly correct, it is not apparent how that advances Helicopter’s argument. The potential for forensic advantage to the prosecution and to the Commonwealth in Mr Lomas giving evidence at the inquest, assuming there is no fetter imposed on its use, is not seriously in doubt. The issue is whether there is anything wrong with this forensic advantage arising in circumstances in which it is Helicopter, and not the proposed examinee, Mr Lomas, who has been charged.

Evidence and admissions attributable to Helicopter

43    After referring to the particular responsibilities of Mr Lomas as Chief Pilot, which are referred to and reproduced above at [14], Helicopter submits that if he were to be examined at the inquest, any statement made by him concerning flight crew training or concerning operational matters affecting the safety of Helicopter’s flying operations would be a representation related to a matter within the scope of his employment within the meaning of s 87(1)(b) of the Evidence Act. If that statement were against the interests of Helicopter, it is submitted, that would thereby be an admission that could be admitted into evidence in the criminal proceedings. It is pointed out in this regard that each of the matters upon which the Commonwealth seeks to cross-examine Mr Lomas concern flight crew training or operational matters affecting the safety of flying operations.

44    As already noted, there is room for doubt as to the correctness of the assertion that evidence given by Mr Lomas in his own capacity, without the benefit of any authorisation by Helicopter, would necessarily fall within the scope of s 87(1)(b). However, that submission will be presumed to be correct for the purposes of this adjudication. Even taking the point at its highest, it does not greatly assist Helicopter because, if the contents of the statement were important enough, and its tender were opposed and rejected, both the prosecution and the Commonwealth would undoubtedly have the option of calling Mr Lomas and either tendering the statement through him, or adducing the contents of his statement viva voce from him in the criminal proceedings. If he objected, he would be able to object to giving evidence upon the ground of the privilege against self-incrimination. If made out, he would likely have the benefit of the procedure under s 128 of the Evidence Act, unless there was by then any realistic possibility of him being prosecuted in Tasmania. While that might mean that Mr Lomas could then be cross-examined, that is not a reason to treat the existence of the statement and any adoption of it at the inquest as being any sufficient reason, without more, for Mr Lomas not to be called at the inquest. Helicopter accepts that in all likelihood, Mr Lomas is a compellable witness in the criminal proceedings. That concession is rightly made because it is undoubtedly correct.

45    As to the interference it points to, Helicopter submits that the following eight propositions are settled law, citing authority which in the greater part does not need to be detailed except as considered further below:

(1)    A corporation does not have the privilege against self-incrimination and consequently may be compelled in criminal proceedings to produce its own documents. That may be accepted as being correct.

(2)    The denial to a corporation of the privilege against self-incrimination leaves intact and unimpaired other fundamental aspects of the accusatorial system of criminal justice. That too may be accepted as being correct.

(3)    An accused is entitled to decline to participate in an investigation of its wrongdoing except where required to do so by law. Again, this may be accepted as being correct.

(4)    The conduct of an inquiry parallel to a person’s criminal prosecution would ordinarily constitute a contempt of court because the inquiry presents a real risk to the administration of criminal justice, and, accordingly, the proper course in such a case is to adjourn the inquiry until the conclusion of the criminal proceedings. On this point, Helicopter submits that while the facts of the cases establishing this proposition have involved parallel prosecution of the examinee, the reasoning upon which it relies has not and cannot be so limited. This is the nub of the case for Helicopter and represents the significant point of departure between it and the Commonwealth. It is the central point requiring resolution in this case.

(5)    To advantage the prosecution at trial by conduct that occurs after charges are laid in a way for which the criminal justice system would not otherwise provide may amount to an interference with the administration of justice. As baldly stated, this proposition may not be doubted, but it begs the question as to what constitutes the necessary type and level of interference, such that the fate of this submission depends on the resolution of the point identified in the preceding submission.

(6)    Prejudice to the defence at trial by conduct that occurs after charges are laid constitutes an interference with the administration of justice. Again, that proposition is too sweeping a statement unless again confined to the necessary type and level of interference involved and again requires a careful examination of the authorities to see if that is correct in the particular circumstances of this case.

(7)    It is a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charge. So stated, the proposition is probably uncontroversial, but in the context of this case assumes an identity between Helicopter and Mr Lomas which may be doubted for the reasons discussed in more detail below.

(8)    While a statute may authorise conduct that would otherwise be a contempt of court arising out of an interference with the accusatorial nature of the criminal justice system, that authorisation must be expressed with irresistible clearness. It is said that it will usually require that it be manifest from the relevant statute that the legislature has directed its attention to the question of whether to abrogate that feature of the general system of law and is determined to do so. Again, so stated, this may be seen to be generally correct, but it begs the question of the necessary type and level of interference being established in the first place.

46    It may thus be seen that Helicopter depends on the interference to its interests that is likely to be occasioned by Mr Lomas being called as a witness at the inquest being of a kind that is capable of constituting a contempt of court or otherwise an interference of a kind that the law does not permit taking place.

47    Helicopter places considerable reliance upon NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456. However, Nutricia is of limited assistance to its case as it addresses a situation in which compulsion to produce documents by reference to statutory notices arose in circumstances where the addressee of the notices, a company, was itself the subject of criminal proceedings. In order to place any meaningful reliance on Nutricia, Helicopter needed to bridge the gap between compulsory powers being exercised against a corporate defendant in criminal proceedings, and such powers being exercised against an employee of such a defendant in person and not in any representative capacity, even if the evidence to be given concerned what was done, or not done, for and on behalf of the employer company.

48    As will be seen, a large part of Helicopter’s case depends upon eliding the distinction between compulsorily examining a defendant who has been charged and compulsorily examining a person employed by or otherwise closely associated with such a defendant. The distinction is fundamental and cannot be glossed over. Yet the submissions for Helicopter touched only lightly on how that distinction was to be bridged. As discussed in considerably greater detail below, Helicopter submits that the principles emerging from Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 (Lee No 1), in particular, provide that bridge.

The Commonwealth’s submissions on interference

49    The Commonwealth submits that the Coroner has the power to compel Mr Lomas to give evidence and that her Honour should be left free to exercise those powers for the purposes of concluding the inquest. To the extent that this submission is directed to discretion, that is addressed at the conclusion of these reasons.

50    The Commonwealth points to significant agreement between the parties as to the framework that should be applied in analysing the issues which arise and some narrow points of significant disagreement. The Commonwealth submits that there appeared to be agreement between the parties that an adjournment is not warranted merely by reason that there are parallel inquisitorial and criminal proceedings on foot. While Helicopter’s original position was that the inquest should be adjourned until the criminal charges against it had been determined, its position in this Court is somewhat nuanced in confining that to Mr Lomas not being required to give evidence. However, in a practical sense, as well as at the level of principle, the distinction is somewhat illusory. The live issue is whether the law stands in the way of Mr Lomas giving evidence at the inquest upon the basis that it will disadvantage Helicopter in relation to the criminal charges it is facing.

51    The Commonwealth points out that the parties agree that the Coroner’s power should be read as not authorising either a fundamental alteration of the accusatorial system or as authorising a contempt, because this would require clear legislative language, which was not contended to be present. However, the Commonwealth submits that the parties disagree on whether calling Mr Lomas as a witness effects an alteration of the accusatorial system as it applies to companies.

52    The Commonwealth makes it clear that the parties disagree on whether calling Mr Lomas involves a substantial risk of serious injustice and therefore would constitute a contempt of court or other impermissible interference. The parties also disagree on whether the Coroner’s previous decisions have any operative effect or disclose any error, with the Commonwealth submitting that this only goes to the nature of the relief that this Court should consider granting, but does not relieve this Court of the burden of determining whether some of the sorts of relief sought should be granted. The Commonwealth submits that if the disagreements it identifies are resolved in its favour, there is no basis for any intervention in the inquest process at this point in time.

53    Apart from specific complaints about how the Coroner exercised her Honour’s discretion, the Commonwealth characterised Helicopter’s case as alleging that:

(1)    the inquest proceedings as proposed would involve a contempt on the basis that it affords to the Commonwealth and to the prosecution advantages that are not otherwise available to them in the criminal process and result in a real, practical prejudice to Helicopter; and

(2)    calling Mr Lomas to give evidence at the inquest involves a direct and substantial interference with the accusatorial system of justice.

54    On the question of contempt, the Commonwealth submits that there is no rule of law which requires statutory powers to be read so as to prevent a person, including the prosecution, from obtaining some advantages in a criminal trial as a consequence of a parallel inquisitorial process, citing Nutricia at [145]. The Commonwealth submits that while there certainly is a rule by which regulators cannot use investigative powers for the purposes of acquiring evidence in extant criminal proceedings without clear statutory authority, and there may also be a rule that prevents the use of statutory powers in a way which has the effect of providing a prosecutor with direct evidence for use in criminal proceedings, citing Nutricia at [177], more is required to establish contempt than identification of a forensic advantage which may accrue as a consequence of the parallel process, again citing Nutricia at [145].

55    The Commonwealth’s submissions proceed on the basis that, given Helicopter’s reliance on the invocation of the fundamental requirements of the accusatorial system, it is necessary to state what those fundamental requirements are, albeit that this was not intended to be an exhaustive statement of all elements of that system, as conceded during the course of the hearing. The two key rules which the Commonwealth identified are described as the “fundamental principle” and the “companion rule”.

56    The fundamental principle is that the prosecution is required to prove the guilt of an accused person. That is another way of stating the combined effect of the presumption of innocence, the right to silence and the privilege against self-incrimination (noting that companies are not entitled to that privilege). The companion rule is that an accused person cannot be required to testify to the commission of the offence charged, citing Lee v The Queen [2014] HCA 20; 253 CLR 455 (Lee No 2) at [33]. The Commonwealth submits that neither of these rules will be in any way affected by Mr Lomas giving evidence at the inquest, even assuming he is prepared to and required to answer questions on matters relating to the criminal charges laid against Helicopter. The Commonwealth’s point is that Mr Lomas is not accused of anything, nor required to answer questions about his own guilt. Accordingly, the Commonwealth submits, none of the relevant features are present which would empower this Court to stop the inquest proceeding.

57    The Commonwealth developed its arguments in relation to those two fundamental principles in somewhat greater detail. However, it is not necessary to go into those principles in that detail. The Commonwealth relied upon Hammond, which established that the taking of evidence in the course of an executive inquiry from an accused, where the accused is bound to answer questions, even in private, will constitute a contempt even if the evidence cannot be used in the criminal proceedings. However, the Commonwealth submits, continuing with an inquiry when there is an overlap between the subject matter of criminal charges and the executive inquiry will not be sufficient on its own to constitute a contempt. The Commonwealth submits that, for present purposes, it is sufficient to note that Mr Lomas has not been charged with any crime and cannot be required to answer any questions which tend to incriminate him except by resort to statutory protections against the use of such evidence against him.

58    The Commonwealth also relies on Hamilton v Oades (1989) 166 CLR 486, in which the High Court permitted the public examination of a company director in relation to the affairs of the company, in circumstances where the director was not entitled to refuse to answer questions on the grounds of self-incrimination but the answers were not admissible in criminal proceedings. The fact of parallel criminal proceedings against the director was not a sufficient basis to prevent the questioning continuing. Hamilton v Oades must be approached with some caution in light of more recent High Court authority and does not need to be relied upon in the resolution of this dispute.

59    The Commonwealth relies upon Environmental Protection Authority v Caltex Refining Co Pty Limited (1983) 178 CLR 477, in which it was found by the majority that the privilege against self-incrimination did not apply to a company and, consequently, that the company could be the subject of a compulsory notice to produce documents. The Commonwealth particularly relies upon Mason CJ and Toohey J at 504, where their Honours said (omitting footnotes):

It makes no sense at all to make the privilege available to a corporation in respect of these books and documents when officers of the corporation are bound to testify against the Corporation unless they are able to claim the privilege personally. Oral evidence given by an officer of the corporation is that of the witness, not that of the corporation.

60    The Commonwealth also relies upon the dissenting judgment of Deane, Dawson and Gaudron JJ in Caltex, at 535, where their Honours observed, consistently with the majority, that when an officer or employee of a corporation is called, even in criminal proceedings against the corporation, the officer or employee may not refuse to answer any question upon the basis that the answer would tend to incriminate the corporation. The Commonwealth submits that this has particular significance to the accusatorial system as it applies to companies and, in particular, to the operation of the companion rule that an accused person cannot be required to testify to the commission of the offence charged. Put simply, the employee is not the company, no matter how incriminating the evidence of the employee may be of the company.

61    That facet of Caltex has been specifically acknowledged by this court in Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 47; 323 ALR 294 (Regional Rail Link case) at [136]. It should be noted that Helicopter seeks to distinguish the Regional Rail Link case by reason of Mr Lomas’ special position as Chief Pilot. However, that point of distinction appears to be of no moment. Neither Caltex nor the Regional Rail Link case afford any support for the proposition that the position of the individual in the company somehow legally aligns their position and interests with that of the company so as to give the company any relevant protection. Indeed, such a proposition is contrary to Caltex, as referred to above.

62    The Commonwealth acknowledges that the companion rule still has work to do if a statutory notice to provide information is served on a company already the subject of criminal proceedings, because, in the absence of specific authority, such powers are generally construed as being exhausted once criminal proceedings have been commenced and are pending, on the basis that they would otherwise be inconsistent with the right to silence that a company retains: Caltex per Brennan J at 516-7. However, the Commonwealth submits, in effect, that the companion rule has no application in the context of oral testimony by company employees, no matter what position they hold or what responsibilities they have, including statutory responsibilities. The Commonwealth submits that subpoenaing Mr Lomas and questioning him does not involve any alteration of the accusatorial system as it operates in relation to companies. That is not least because Mr Lomas is a compellable witness in the criminal proceedings and may be called to give direct evidence against Helicopter in the criminal trial, which emphasises the inapplicability of the companion rule in respect of employee testimony. It follows, the Commonwealth submits, that the Coroners Act does not need to authorise an alteration in the accusatorial process for which Mr Lomas is to be called, as no alteration to that process occurs as a consequence of the exercise of the statutory power to require him to attend and give evidence.

63    The Commonwealth submits that all of the more recent developments in the law, as it concerns the accusatorial system of justice, serve merely to emphasise that the legislature must express itself with clarity if it is proposing to allow an executive inquiry to proceed in a way that does involve a fundamental alteration of that system. The Commonwealth accepts that, unless authorised by the Parliament in clear terms, requiring an accused person to answer questions in relation to pending criminal charges against them is not permitted, even in secret, and even where the answers cannot be used in the criminal proceedings. That much is clear from X7, Lee No 1, Lee No 2, and R v OC [2015] NSWCCA 212; 90 NSWLR 134. However, the Commonwealth submits, the developments in this area provide no assistance to Helicopter. This is because calling Mr Lomas in the present circumstances does not alter any fundamental aspect of the accusatorial system. As a result, there is no requirement that the form of questioning proposed be authorised by the Coroners Act by express words or necessary intendment. The Commonwealth therefore submits that there is no limitation on the Coroner’s power to require Mr Lomas to attend for questioning which arises from any aspect of the accusatorial system.

Consideration of interference

64    Helicopter’s main case depends upon establishing that the calling of Mr Lomas before the conclusion of the criminal proceedings against Helicopter would constitute a contempt of court by the Coroner, at least in the absence of statutory authorisation. This proposition is based on a number of authorities in which the courts have considered that the examination of a person may involve an interference with the due administration of criminal justice where parallel criminal proceedings against that person have not been concluded: McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 84.8-85.4; Royal Commission Into Certain Crown Leaseholds (No 2) [1956] St R Qd 239 (Townley Royal Commission No 2); Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 (BLF) per Gibbs CJ at 53.8 to 54.5; Hammond per Gibbs CJ at 198.7; and Lee No 1. Lee No 1 and BLF are discussed in some detail below, as is Townley Royal Commission No 2.

65    Helicopter acknowledges that, with the exception of Townley Royal Commission No 2, the cases it relies upon have all referred to the different circumstance in which it is the examinee who is subject to parallel criminal proceedings.

66    As already noted, Mr Lomas himself has not been charged. Helicopter made clear in oral submissions that it does not rely on Mr Lomas’ privilege against self-incrimination. Moreover, there is no suggestion that Mr Lomas is going to be giving evidence with the authority of Helicopter. Therefore he would not be giving evidence as though he is, in effect, Helicopter, and would do so only in a personal capacity. However, Helicopter contends that the evidence Mr Lomas can give will still be able to be attributed to it and used against it in the criminal proceedings, by reason of his role as Chief Pilot and the statutory duties and responsibilities attaching to that position, as reproduced at [14] above. That characterisation is disputed by the Commonwealth, but may be assumed to be correct for present purposes only as it does not affect the conclusion ultimately reached.

67    Helicopter suggests that the relevant question is whether “requiring Mr Lomas to give evidence in the circumstances poses a real risk as opposed to a remote possibility of interference with the system of criminal justice”. This submission relevantly adopts the language of certain observations made by Gageler and Keane JJ in Lee No 1.

68    It must be borne in mind that, where reference is made in the authorities to the notion of “interference” with the system of criminal justice, what is ultimately being referred to is a conclusion that has been reached in the factual and legal circumstances of each of those cases. In many instances, those circumstances involved questions of significant rights, such as the right to silence and the privilege against self-incrimination. The reasoning (and not just the conclusion) in those cases must therefore be the basis on which the Court is to consider what distinction should be drawn between circumstances that affect criminal proceedings and circumstances that impermissibly interfere with the system of criminal justice. In the present case, there is no questioning the existence of the former. The existence of the latter, however, is not a corollary of the former, and cannot be proven by mere invocation that there is “interference”.

69    Here, Helicopter does rely upon a particular kind of interference. It is interference that is said to arise because:

(1)    the Commonwealth will have the advantage of exploring and assessing the evidence Mr Lomas might give if he were to be called as a witness in the Commonwealth’s defence of the criminal charges against it, an advantage which is said not to be available under the ordinary rules of criminal procedure; and

(2)    there is a risk that Mr Lomas giving evidence would result in the prosecution being armed with evidence and admissions that are attributable to Helicopter in the criminal proceedings.

70    In terms of the interference it asserts, Helicopter’s case has the greatest measure of similarity to the circumstances considered in Lee No 1, insofar as that case was concerned, broadly speaking, with the forensic advantage at criminal trial that might be afforded to the prosecution by obtaining evidence that has been compelled to be given in parallel proceedings. That was not the kind of interference that caused the Royal Commission in Townley Royal Commission No 2 to be adjourned pending the outcome of the criminal proceedings. Rather, the Royal Commission in that case was evidently delayed because of the risk of interference by reason of concurrency or proximity between the public inquiry and the criminal proceedings. Nor did the kind of forensic interference that Helicopter relies upon stand in the way of the Royal Commission resuming in Townley Royal Commission No 2, albeit that there were no actual charges against the Minister the subject of the inquiry remaining on foot in that case. Here, the only risk of concurrence or proximity in the inquest and the criminal proceedings arises from the commencement of this proceeding, not from the conduct or timing of the inquest in which Mr Lomas’ evidence would have concluded by now. But, in any event, that is not the sort of interference that Helicopter is relying upon establishing.

71    The crux of Helicopter’s case is really that the principle addressed in Lee No 1 goes beyond the circumstance addressed in that case in which it was the accused persons whose evidence was sought to be compelled in separate civil proceedings. It is submitted by Helicopter that the reasoning of every member of the High Court in Lee No 1 supports the broader proposition that is sought to be relied upon in this case.

72    If Lee No 1 does not support Helicopter’s case, it is practically impossible for it to succeed. This is because cases such as BLF and Townley Royal Commission No 2 do not address the kind of interference that Helicopter relies upon. It is necessary to consider both Lee No 1 and BLF in some detail, because Helicopter relies upon what it asserts are principles emerging from the judgments of both cases that are said to extend beyond their factual context to the present situation. For completeness, I have also explained the reasons why Townley Royal Commission No 2 does not assist Helicopter’s argument.

73    Posed in this way, the question of interference is considered without taking into account the preventative remedies available to the Coroner, as relied upon by the Commonwealth, such as a closed court and suppression orders. Those alternatives will only need to be considered in the mix if the primary argument as to the scope of Lee No 1 can be sustained. If not, they provide a further reason for not intervening. However, it is worth noting that French CJ in Lee No 1 at [41] approved of such protections being taken into account by Basten JA in the Court of Appeal. In [41] of Lee No 1, the Chief Justice said that “Basten JA correctly observed that if a real risk of prejudice were perceived in the conduct of the examination, the examining judicial officer would have powers available to diminish or prevent that prejudice to the extent that it is beyond the prejudice authorised by the CAR Act”, and relied upon that feature, at [55], as part of the statutory interpretation reasoning for dismissing the appeal. Crennan J expressed similar views at [120].

The High Court’s decision in Lee No 1

74    The particular question that arose before the High Court in Lee No 1 was whether the statute in question authorised an examination of a person charged with criminal offences about conduct that was also the subject of criminal charges against that person. In that case, Mr Lee and his son had been charged with offences under the Drug Misuse and Trafficking Act 1985 (NSW). He and his son had previously been charged with firearms offences and his son had been charged with a money laundering offence. On the same day as the Lees were charged with the drug offences, the New South Wales Crime Commission applied ex parte to the Supreme Court of New South Wales for restraining orders over assets in the name of the son and a Ms Park. The application was made under the Criminal Assets Recovery Act 1990 (NSW) (CAR Act). About a month later, while the criminal charges were still pending, the Commission applied on notice for orders under s 31D(1)(a) of the CAR Act for the examination of Mr Lee concerning the affairs of his son and Ms Park, and for the examination of his son concerning his own affairs. A judge refused to make the examination orders.

75    The Commission applied for leave to appeal to the New South Wales Court of Appeal. By the time that the application came on for hearing, the Lees had been tried in the District Court except as to the money laundering charge against the son. The Court of Appeal granted leave to appeal and allowed the appeal. The Lees were granted special leave to appeal to the High Court. Their appeal was heard by a bench of all seven justices and dismissed by a majority of four justices, being French CJ, Crennan J and, in a joint judgment, Gageler and Keane JJ. The reasons for the conclusion that examination of the Lees was permitted despite pending criminal charges at the time differed somewhat, such that they require individual consideration. The views of the dissenting justices are also important to consider in relation to the underlying principles, and not just their application to the particular legislation, facts and circumstances of that case.

76    In his introductory comments in Lee No 1, French CJ at [1] referred to the presumption of innocence, the privilege against self-incrimination and the right to silence as important elements of the accusatorial system of justice. His Honour described the privilege against self-incrimination as reflecting the common law’s antipathy to compulsory interrogation about criminal conduct. At [2], his Honour noted that aspects of the accusatorial system of justice have occasioned inconvenience to the executive in investigating criminal conduct. His Honour observed that the common response had been the passing of legislation providing for the compulsion of answers to be given in public or in private, but with protection afforded to the witness against the use, but not the derivative use, of that evidence. His Honour then framed the issue before the High Court as follows at [3]:

In some cases, a person under statutory examination may already be facing criminal charges and find himself or herself being asked questions touching matters the subject of those charges. Whether a statute authorises a compulsory interrogation of an accused person in those circumstances is a question of statutory interpretation. The courts do not interpret a statute to permit such questioning unless it is expressly authorised or permitted as a matter of necessary implication. When the text, context and purpose of a statute permit a choice to be made, the courts will choose that interpretation which avoids or minimises the adverse impact of the statute upon common law rights and freedoms. However, subject to constitutional limits, where a parliament has decided to enact a law which abrogates such a right or freedom, its decision must be respected.

77    Thus it may be seen that French CJ viewed the issue as one of statutory construction, principally arising out of the circumstance in which a person accused of a criminal offence is to be compelled to answer questions that may touch upon the subject of the charges. The same understanding of the issue at hand was reflected in the reasons of all of the remaining justices, both in the majority and in dissent, as to whether s 31D(1)(a) of the CAR Act authorised an examination taking place while the criminal charges were still pending: see Lee No 1 per French CJ at [4], Hayne J at [59], Crennan J at [86]-[89] and [144], Kiefel J at [159], [165] and [195], Bell J at [260] and Gageler and Keane JJ at [267]-[269]. The outcome turned on differences in statutory construction as to the existence of statutory authorisation for the interference that was undoubtedly in play, such that more general statements of principle as to the accusatorial process may be usefully gleaned from any of the judgments, whether in majority or in dissent.

French CJ in Lee No 1

78    French CJ in Lee No 1 considered a long line of authority on contempt of court by way of interference arising out of the actions of the executive. His Honour then observed at [19]:

Nevertheless, as pointed out by Griffith CJ in Clough, while a Royal Commission created under the prerogative power of a State executive government or under s 61 of the Commonwealth Constitution can inquire into the commission of criminal offences, such an inquiry cannot be conducted so as to interfere with the administration of justice. Conduct interfering with the administration of justice would not be protected on the basis that it was done on behalf of the Crown under the authority of a Royal Commission [(1904 2 CLR 139 at 161]. Latham CJ, in McGuinness, after quoting Griffith CJ, said [(1940) 63 CLR 73 at 85]:

“If, for example, a prosecution for an offence were taking place, the establishment of a Royal Commission to inquire into the same matter would almost certainly be held to be an interference with the course of justice and consequently to constitute a contempt of court. There are other circumstances in which such an inquiry might prejudice proceedings in the civil or the criminal courts. It is neither necessary nor desirable to attempt to enumerate in an exhaustive manner the circumstances which might raise a case of contempt of court.”

79    The above quote by French CJ from McGuinness does not, in terms, confine the potential for contempt to arise from interference with the administration of justice, but, in context and by the reference to the quote from Hammond, coupled with his Honour’s opening remarks summarised above, it is clear enough that the potential for contempt in that case arose from the interference with the accusatorial system of justice, by requiring a person who would otherwise be entitled to the presumption of innocence, the privilege against self-incrimination and the right to silence, to give evidence about the matters giving rise to a criminal charge. The other authorities considered by his Honour concerned the need for clear statutory authorisation for such an interference to take place. His Honour, along with Crennan J, placed some weight on the proposed examination in Lee No 1 taking place under the auspices of a registrar of a superior court with powers to prevent interference from in fact taking place.

80    Some support might be thought to be gleaned for Helicopter’s argument from a portion of French CJ’s reasons at [20] in Lee No 1 as follows:

… Clearly enough, a Royal Commission which, without clear statutory authority, inquired into allegations of criminal conduct the subject of pending charges would be at risk of committing a contempt of the court in which the charges were pending. The question whether such an inquiry could be conducted by any executive body would turn upon the scope of the powers conferred upon it by statute. That would be a matter of construction. …

81    The above passage must be read in the context of the rest of [20] and, indeed, the rest of French CJ’s reasons. While his Honour was making a reference to a situation of direct interference by way of concurrence or proximity of the parallel proceedings, or something else that cast some kind of doubt on the authority or effectiveness of the criminal court, such was at risk of occurring in Townley Royal Commission No 2, that observation was made in the context of the privilege against self-incrimination of the prospective examinee. The criminal conduct referred to is that of the person to be compulsorily examined. Similar contextual comments referring to the examinee being the person charged, and to the privilege against self-incrimination, permeate the balance of the analysis of the authorities referred to by his Honour at [21]-[50]. Except by the device of taking comments out of context, there is no support to be found in the judgment of French CJ in Lee No 1 for the existence of the wider principle relied upon by Helicopter, in the absence of a risk of direct interference in the conduct of the criminal proceedings being demonstrated of the kind that was in issue in BLF and in Townley Royal Commission No 2.

Hayne J in Lee No 1

82    Hayne J in Lee No 1 principally adopted the reasons given by Kiefel J. His Honour did not consider that there was any basis to distinguish the statutory regime in X7 and the CAR Act. His Honour therefore disagreed with the majority’s conclusion that the legislature had authorised the relevant interference. In so doing, his Honour emphasised that the anchor of the interference being discussed in X7 and Lee No 1 was the accusatorial process, and focussed on the examinee being the person who had been charged: see, for example, [78]-[79] and [82]-[84]. Nothing in his Honour’s reasons supports the existence of the wider principle relied upon by Helicopter in the absence of a risk of direct interference in the conduct of the criminal proceedings being demonstrated.

Crennan J in Lee No 1

83    Crennan J in Lee No 1 considered the issue of contempt in some detail at [144]-[155]. While certain passages make an unconfined reference to prejudice to the administration of justice due to concurrent criminal proceedings and other examination proceedings, such as in a Royal Commission, in the context of the remainder of the reasoning, and in the context of the underlying circumstance in Lee No 1, being the examination of a person who is the subject of a separate criminal charge, nothing her Honour said provides support for the existence of the wider principle relied upon by Helicopter as applying in this case. It is noteworthy that her Honour, like French CJ, placed some emphasis on the examination taking place before a registrar of the Supreme Court of New South Wales, with the usual duty and capacity to ensure the proper administration of justice and to avoid any abuse of process, which her Honour, at [150]-[151], found to be just as applicable to any risk of contempt and thus well able to avoid what happened in the Royal Commission case of Hammond. Similar conclusions apply to the Coroner, with perhaps even greater force given her Honour’s position as both Chief Magistrate and Chief Coroner.

Kiefel J in Lee No 1

84    Kiefel J in Lee No 1, like French CJ, clearly anchored her Honour’s consideration of the case to the factual circumstance of a person already charged with a criminal offence being made subject to compulsory examination about the subject matter of the charge: see [159]-[162] and [165]. In was in that context that her Honour considered the fundamental principle of the presumption of innocence and the criminal justice system at [174]-[193], all in the context of a person charged with a criminal offence being examined about the subject matter of the charge. That analysis is an essential context in which to consider what her Honour then said, at [194]-[213], about the role of the courts in the administration of justice, including on the topic of contempt, and the weight to be given to Hammond. Taken in isolation, the particular passages from her Honour’s judgment relied upon by Helicopter might be seen to support the wider principle contended for, but that submission cannot be sustained when due regard is had to the context in which those passages appear. As her Honour made clear in part of [195]:

… The question which therefore arises in this appeal is whether the exercise of the powers conferred by the CAR Act, which are expressed in general terms, to compel answers to questions concerning an offence with which a person is charged could constitute a contempt. …

85    In the abstract, two of the cases referred to by Kiefel J at [196]-[197], being Clough v Leahy (1904) 2 CLR 139 at 156-157 and McGuinness at 85, might have suggested some support for Helicopter’s asserted wider principle. However, her Honour noted, at [198], that Gibbs CJ in BLF had found the potential for contempt in those cases to arise from a prosecution being commenced against the person based on allegations made in an executive inquiry into whether they had committed the same offence, yet the executive inquiry continuing. Even then, the conclusion reached was only that that would, generally speaking, amount to a contempt of court. That is a far cry from the present situation, and is, in any event, not the kind of interference that Helicopter relies upon. While the inquest is traversing similar territory, it is not an inquiry as to whether Helicopter has committed the offences with which it has been charged. The need for that degree of nexus is made clear by her Honour’s subsequent consideration, at [199]-[213], of Hammond, a case in which the examinee at a Royal Commission was the person charged. Her Honour observed, at [204], that Deane J in Hammond had found that it “was ‘fundamental’ to the administration of criminal justice that a person not be made the subject of a parallel inquisitorial inquiry concerning the matters with which he or she was charged”. Her Honour further observed, in part of [211]:

… The interference, and thus the contempt, identified by Gibbs CJ in Hammond lay in the fact that if Mr Hammond were examined, in detail, as to the circumstances of the alleged offence, he was likely to be prejudiced in his defence. Mr Hammond would have been prejudiced in his defence “because he could no longer determine the course he would follow at his trial according only to the strength of the case that the prosecution proposed to, and did, adduce in support of its case that the offence charged was proved beyond reasonable doubt”.

86    Kiefel J in Lee No 1 further observed in part of [213]:

The conclusion that was reached in Hammond was that an examination of an accused person risks an interference with the administration of justice because it may prejudice the person in his or her defence. It follows that if general legislation which provides for compulsory examination was to be read as permitting the examination of an accused person, the principle fundamental to the accusatorial system of justice would be altered. …

87    Finally, Kiefel J in Lee No 1 observed in part of [240], in the context of conducting the statutory construction exercise in relation to s 31D of the CAR Act:

It is necessary to keep well in mind the nature of the risk in question. The occasion for the risk is not whether a particular question might be asked, which the Court can identify as prejudicial and address. The occasion for the risk is an examination in the circumstance where a person is charged with an offence. The risk arises because an examination is likely to prejudice the conduct of the accused in the accused’s defence. …

88    Read as a whole, Kiefel J’s reasons in Lee No 1 do not support the existence of the wider principle relied upon by Helicopter in the absence of a risk of direct interference in the conduct of the criminal proceedings being demonstrated.

Bell J in Lee No 1

89    Bell J in Lee No 1 adopted Kiefel J’s reasons. The balance of her Honour’s reasons do not stray from the factual circumstances of that case and do not support the existence of the wider principle relied upon by Helicopter in the absence of a risk of interference in the conduct of the criminal proceedings being demonstrated.

Gageler and Keane JJ in Lee No 1

90    Gageler and Keane JJ in Lee No 1, at [268]-[269], defined the ambit of that case as being to answer two questions:

Can the Supreme Court order the examination of a person against whom criminal proceedings have been commenced but not completed where the subject matter of the examination will overlap with the subject matter of those proceedings? Our answer is that it can.

Can the Supreme Court refuse to order the examination of a person for reasons only that criminal proceedings against that person have been commenced but are not completed and that the subject matter of the examination will overlap with the subject matter of those proceedings? Our answer is that it cannot.

91    Stating those questions so clearly and starkly makes it difficult at the outset to interpret their Honours’ reasons as addressing or supporting the existence of the wider principle relied upon by Helicopter in the absence of a risk of direct interference in the conduct of the criminal proceedings being demonstrated. Careful consideration of those reasons only serves to confirm that conclusion.

92    Helicopter sought to draw some support from Gageler and Keane JJ’s reasons at [319]-[320]:

Separate, but overlapping with the right of a person charged with a criminal offence to a fair trial and available to protect that right, is the power that inheres in a court to restrain as a contempt conduct giving rise to a real risk of interference with the administration of justice. There is a corresponding principle, itself an application of same general principle of statutory construction, that “[a] statute expressed in general terms should not be construed so as to authorise the doing of any act which amounts to a contempt of court” [Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 473].

It is important to recognise, however, that a contempt of court of the relevant kind occurs “only when there is an actual interference with the administration of justice” or “a real risk, as opposed to a remote possibility” of such an interference [Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (BLF Case) (1982) 152 CLR 25, citing Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299] and that the “essence” of contempt of that kind is a “real and definite tendency to prejudice or embarrass pending proceedings” involving “as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case” [John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370, 372, quoted in Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (BLF Case) (1982) 152 CLR 25 at 56, 166]. The finding of such a real risk or definite tendency necessarily requires more than abstract assertion: it requires the finding at least of some logical connection between the action that is impugned and some feared impediment to the conduct of the proceedings that are pending, which impediment can properly be characterised as an interference with the administration of justice or, more specifically in a particular case, as unfairness to an accused.

93    It was suggested by Helicopter that Gageler and Keane JJ in the passages reproduced above were referring to the existence of the wider principle relied upon in favour of not being able to examine a person who has not been charged in order to avoid interference with the proceedings against a person who has been charged, but is not an examinee. However, that argument cannot be sustained. Those paragraphs must be read in the context of the surrounding paragraphs, and the rest of their Honours’ reasons, including in particular the questions their Honours posed and answered, reproduced above at [90]. In particular, as [318] makes clear, their Honours were concerned with “[t]he fundamental principle in respect of which the principle of construction is sought to be invoked in the present case – that no accused person can be compelled by process of law to admit the offence with which he or she is charged …”.

94    The reliance by Helicopter on references by Gageler and Keane JJ at [322] to the prosecution obtaining an advantage that it would not otherwise be entitled to is similarly misconceived. In context, it is tolerably clear that their Honours’ reasons were confined to addressing the particular circumstance of the examination of a person against whom criminal proceedings have been commenced. This is illustrated at the commencement of [322] by the reference to a “variety of ways in which, as a matter of practical reality, the examination on oath of a person against whom criminal proceedings have been commenced may have a tendency to give rise to unfairness amounting to an interference with the due course of justice in a particular case”. In any event, some caution must be adopted in seeking to apply the specific interpretation given to s 31D(1)(a) to circumstances such as these. The role of the Coroner, which includes preparing and publishing the decision, means that the inquest is different to an examination being conducted on behalf of the Commission before a passive registrar.

95    Taken as a whole, Gageler and Keane JJ’s reasons do not support the existence of the wider principle relied upon by Helicopter in the absence of a risk of interference in the conduct of the criminal proceedings being demonstrated.

Townley Royal Commission No 2

96    In Townley Royal Commission No 2, an inquiry was being conducted by Townley J of the Queensland Supreme Court, sitting as Royal Commissioner, directly into allegations made in the Senate that a Minster of the Crown had been guilty of criminal conduct in the nature of corruption by soliciting payment in relation to leases over Crown land. (The Senator could not be compelled to repeat those allegations at the Royal Commission: Royal Commission Into Certain Crown Leaseholds [1956] St R Qd 225 at 233.) Helicopter relied upon Townley Royal Commission No 2 in the way it was referred to by Gibbs CJ in BLF at 51 and at 54. That indirect reference by the Chief Justice was sufficient for BLF, but is not sufficient in the present situation, because the finer details are material in this case to understanding what happened at that Royal Commission.

97    In Townley Royal Commission No 2, the Royal Commissioner issued an interim report recommending that the allegation be investigated, the Minister was charged with an offence under s 422B of the Criminal Code (Qld) of corruptly soliciting a secret commission, and the inquiry was thereupon suspended pending the outcome of that criminal charge. Townley Royal Commission No 2 provides no guidance to the present circumstances for a number of reasons to do with the quite unusual facts and circumstances of that case.

98    First, as was made clear in Townley Royal Commission No 2 at 252, the focus was on the same conduct and the same question that was to be addressed in the criminal proceedings, namely, the guilt of the Minister of conduct amounting to the secret commission offence, albeit that the Commission’s inquiry could not give rise to any binding determination.

99    Secondly, Townley Royal Commission No 2, as reported, was not about the decision to delay the Royal Commission, but, rather, about its resumption after the Minister’s acquittal. The delay and the acquittal were a matter of history by the time of Townley J’s decision to resume the Royal Commission.

100    Thirdly, as Townley J observed at 241, no certificate of acquittal had been obtained, leaving open the possibility of the Minister still being able to be prosecuted, yet that did not stand in the way of the Royal Commission resuming.

101    Finally, as is apparent from the foregoing, the nature of the anticipated interference that had earlier given rise to the delay in the Royal Commission in Townley Royal Commission No 2 was direct concurrence between that executive inquiry being conducted by a Supreme Court judge sitting as a Royal Commissioner and criminal proceedings being conducted before a magistrate, rather than any collateral effect arising out of the information emerging from the former having an impact by way of its use in the latter.

102    It follows that Townley Royal Commission No 2 provides little guidance, and certainly is no authority, binding or otherwise, as to what should happen in the present situation. The reliance on what happened in Townley Royal Commission No 2 by Gibbs CJ in BLF was to demonstrate the degree of direct interference that would be required for there to be a real risk of contempt, in circumstances where there was no suggestion of an interference in the accusatorial system of justice by encroaching upon an examinee’s entitlement, in criminal proceedings, to the presumption of innocence, the right to silence or the privilege against self-incrimination.

The BLF case

103    Given the reliance that was placed upon BLF by Helicopter at the hearing of its application, it is necessary to give some closer consideration to that case. The question of whether an inquiry which is parallel to court proceedings will constitute a contempt of court by reason of interference with those proceedings was considered at some length in BLF. In that case, by dual Commonwealth and Victorian commissions, a Royal Commissioner was appointed to inquire into the activities of a union, including, relevantly, whether it or its officials had engaged in conduct contrary to law. A month or so later, the same governments, together with the government of Western Australia, had commenced proceedings in this Court for the cancellation of the registration of the union. The union took action to prevent the Royal Commission sitting. It failed at first instance, but succeeded in the Full Court. The union’s success in the Full Court did not turn on witnesses at the Royal Commission being asked questions on matters that might arise in the court proceedings; that argument failed. Rather, the Full Court intervened essentially upon the basis of adverse publicity, restraining the Royal Commission from continuing in public, but not restraining private hearings, as discussed further below.

104    The Full Court was overturned by the High Court. Six out of seven justices (Murphy J dissenting) found that establishing the Royal Commission had not interfered with the course of justice, and four out of those six justices found that it had not been shown that the conduct of the Royal Commission in public tended to interfere with the course of justice, contrary to the conclusion reached by the Full Court of this Court and in keeping with the primary judge. Thus the case addressed the issue of what sort of conduct of an inquiry may constitute interference with the administration of justice so as to amount to contempt of court.

105    Gibbs CJ, at 56 and again at 60, stated the now accepted test for a contempt of this kind arising from actual interference with the administration of justice, being the question of whether there is a real risk as opposed to a remote possibility of that taking place. As part of his Honour’s reasoning in concluding that such interference was absent, it was observed by his Honour, at 55-56, that while there was common ground between the inquiry and the court proceedings, there were no specific allegations in the latter of the kind being considered in the former. The purposes of the Royal Commission and the court proceedings were different. The tenor of his Honour’s reasoning was pointing to something that adversely affected the court proceedings, and not merely the interests of a particular party to those proceedings, although that was a factor to take into account in assessing the impact on the court proceedings.

106    Stephen J, dissenting in support of the Full Court’s finding that there was some degree of prejudice to the administration of justice, at 74, relied upon the commonality of two of the governments establishing the Royal Commission also being moving parties in this Court, with the risk being that of pre-trial and public prejudice. Again, the focus was on the integrity of the court proceedings, rather than any individual interest, although doubtless the two were not mutually exclusive.

107    Mason J, in the majority in overturning the finding of interference with the course of justice amounting to a risk of contempt, considered, at 98, that too much weight had been given to contempt principles that had applied to the prejudice to jury trials by newspaper publications insofar as it might amount to trial by media. Again, his Honour was concerned with the risk of direct interference, and not with evidence being obtained that might later be adduced. His Honour, at 99-100, pointed to the absence of any serious risk of substantial injustice, with any prejudice arising from public perception being confined to the union, rather than the court proceedings. His Honour, at 103, did acknowledge the important factor that the court proceedings were civil and without a jury, but that appears to have been directed to the absence of trial by media impacting on the result.

108    Aickin J, at 119, considered the risk of any prejudice to the court proceedings to be slight and remote for a variety of reasons that were essentially factual, so as not to provide any particular point of principle applicable in a different context. His Honour otherwise agreed with Wilson J on this topic.

109    Wilson J, at 131, supported the Full Court’s collateral conclusion that there was no contempt arising out of the impact on witnesses. However, unlike the Full Court, no other suggested basis for finding the necessary interference found favour with his Honour. In particular, the adverse publicity impact relied upon by the Full Court was not accepted in the absence of evidence that it might tend to adversely affect a witness in a material way: see 136.

110    Brennan J, at 168-9, considered that it was open to the Full Court to conclude that the continuation of the Royal Commission while the proceedings in this Court were pending or being heard would, as a matter of practical reality, either tend to usurp the function of this Court, or tend to introduce into this Court’s consideration facts other than those proved in evidence adduced before it, or tend to affect this Court’s freedom from bias, or undermine public confidence that the due administration of justice would not be affected in one or another of those respects. This was enough to threaten a technical contempt. Thus his Honour’s dissenting view turned on acceptance of a measure of direct interference, in the nature of interference by publicity, rather than something subsequent and indirect.

111    Thus none of the judgments in BLF provide any support for Helicopter in the present circumstances.

The concept of interference in criminal proceedings to ground intervention

112    What emerges from the authorities are instances of what may be distinguished as either direct or indirect interference. Although not a perfect characterisation, the first category must be understood as “direct” in the sense that an inquest or other process may cause interference in the nature of prejudice or embarrassment to related curial proceedings. By contrast, the second category must be understood as “indirect” insofar as it is concerned with the potential for an inquest or other process to have an indirect impact on fundamental rights of the participant in the parallel curial proceedings. It is not a strict dichotomy, given that a case may have elements of both. It is a matter of emphasis in the way in which the interference takes place.

113    Direct interference may arise from proximity or concurrence between the two types of proceedings, or it may arise from something that otherwise disturbs the authority or perceived authority of the Court. Direct interference may also be occasioned by such events as adverse publicity. While the parties to the proceedings may inevitably be affected consequentially, the interference goes directly to the integrity of those proceedings.

114    The second, quite different, category of interference is of the kind that is described in cases such as Hammond, Lee No 1, Lee No 2, X7 and R v OC. They are cases in which the focus is on the potential for an inquiry or other process to have an indirect and impermissible impact on the rights of a person in curial proceedings. It most commonly, if not exclusively, arises in relation to criminal proceedings because of the unique accusatorial character of such proceedings. That character gives prominence to the interrelated rights or privileges of the presumption of innocence, the privilege against self-incrimination, and the right to silence. But it is the accused person who cannot, without clear legislative authority, be forced to surrender such rights or privileges. A person who has been charged, but is not being required to give up such rights or privileges, cannot claim protection based on interference because there is no such threat. In the absence of such a threat, the interference lacks the necessary forensic quality adversely affecting a fundamental aspect of the proceedings themselves. Helicopter necessarily has not been able to bring itself within the indirect form of interference by reason of being charged and being called as a witness, because the latter is not possible, and indeed disavows that and maintains that it is not necessary that it go that far.

115    Helicopter does not have or seek to make a case for establishing that there is any direct interference to the criminal proceedings. Its concern, unsurprisingly given the absence of a jury, is not with such things as adverse publicity. Rather, it seeks to rely upon the adverse consequences to it, and the forensic advantages accruing to the prosecution or the Commonwealth, arising from any overriding of Mr Lomas’ rights. It seeks to achieve this despite this not being a feature of any case identified by Helicopter. Rather, it seeks to argue for a kind of hybrid, in which there is no reliance on its individual rights or privileges being attacked in the inquest in the manner of those argued for in Hammond, Lee No 1, Lee No 2, X7 and R v OC, nor on interference in the conduct of the proceedings of the kind advanced in BLF or Townley Royal Commission No 2. However, there is no authority, nor any discernible principle, to support such an interference existing. A survey of the authorities reveals that the interference required to be demonstrated is something that either interferes indirectly with the conduct of the curial proceedings – almost always criminal proceedings – or interferes directly with the fundamental rights of a person who is a party to such proceedings, which, to date, has been confined to persons charged with a criminal offence where there has been a denial to them of the usual rights or privileges that are an essential and indispensable feature of the accusatorial nature of criminal proceedings. In a civil context, that interference may take place if improper pressure is brought to bear on a witness, being an aspect of the divided views of the High Court in BLF, but, again, it must have the quality of interference, not merely subsequent consequence. 

116    It has not been established by Helicopter that there was any relevant restriction on the Coroner issuing a subpoena under s 43 of the Coroners Act to require Mr Lomas to appear at the resumed inquest to give evidence. Nor was there any relevant restriction on the Coroner adjourning, or declining to further adjourn, the inquest under s 36 of the Coroners Act. No other power needed to be exercised to reach the point that Helicopter objects to.

117    Helicopter has not demonstrated that the nature of Mr Lomas’ role as its Chief Pilot, and any capacity he may have to give evidence that incriminates it, places him in any different position to any other witness who may be called at any inquest. Even a natural person who is charged, or may be charged, with a criminal offence arising out of the same subject matter of an inquest cannot resist being made to attend. Generally speaking, such a person may exercise a right of silence, but even then that can be overridden in certain circumstances, which is part of the reason why s 51B of the Coroners Act exists in the first place, as discussed in greater detail below.

118    The problem for Helicopter in reaching the conclusion that there was no relevant restriction on the Coroner issuing the subpoena to Mr Lomas is that this is the substance of the pleaded decision that the Coroner has made requiring Mr Lomas to give evidence at the resumed inquest, although Helicopter seeks to read more into it than that. Certainly, there were collateral decisions, in that the Coroner refused an application to delay the inquest and refused to restrict the evidence that might be given at the outset, but these were no more, legally, than a decision to adhere to the decision to issue the subpoena and thereby require Mr Lomas to appear to give evidence. Once this characterisation of what the Coroner has done is appreciated, much of the rest of the basis for the relief that Helicopter seeks falls away.

119    There is a critical distinction between the potential for what takes place in an executive or quasi-executive inquiry, or even curial proceeding, merely to affect adversely an interest of a party in curial and especially criminal proceedings, and something that rises to the level of interference in such proceedings. This point was made reasonably clear by Spigelman CJ in Nutricia as follows:

141.    The word “interference” is protean and can apply to matters of minor significance and also to matters of considerable significance. In that respect it is quite likely to be deployed as a mode of expressing a conclusion, rather than as a legal test. When so used, the formulation “interference with the course of justice” has an unstated adjective and is used in the sense of an “impermissible interference”. Accordingly, Gibbs CJ in Pioneer Concrete and Deane J in Hammond referred to an “improper interference”: see 470 [52] and 472 [56] supra.

142.    This conclusion is reinforced by the context in which the formulation “interference with the course of justice” has appeared, namely that the relevant conduct was such as to constitute a contempt of court. The authorities considered above — Pioneer Concrete, Hammond, Environment Protection Authority v Caltex Refining Co and Commissioner of Taxation v De Vonk (see at 470 [51]–[52], 471 [54], 472 [56], 478 [82]–[83], 479 [85]–[86]) — all make it clear that there must be a finding of contempt of court, being that category of contempt sometimes referred to as “interference with legal proceedings”.

143.    It cannot be said that any “effect” upon extant proceedings constitutes such a contempt. In my opinion, the formulation advanced by Nutricia is too wide. The cases indicate that there must be a finding that a contempt of court has occurred or is threatened, being a “real risk” of interference with the administration of justice.

144.    This conclusion is supported by the fact that the Court in Hammond refused to make an order restraining the Royal Commission from inquiring into or reporting on matters “touching and concerning” the charge of conspiracy that had been lain: see Hammond (at 195–196, 199 and 208–209). Nothing in Hammond or the other authorities, suggests that a mere “effect” is sufficient.

145.    In my opinion a mere “advantage” will not, when expressed in those terms, constitute an impermissible interference with court proceedings so as to amount to a contempt of court. There may, however, be such an interference and a contempt by reason of conduct undertaken other than “for the sole or dominant purpose of obtaining evidence”. It is only necessary to refer to contempt by reason of publicity as an example. However, it cannot be said that any advantage is sufficient.

120    In the absence of establishing improper interference, it is difficult to see how there could be any contempt or even some lesser but substantial enough basis for intervention by this Court. The categories of case in which there is an actual or real risk of such interference are not closed, but interference must nonetheless be demonstrated. Helicopter has failed to do so. It points to forensic disadvantage and a generalised sense of unfairness as a result of certain advantages being afforded to the prosecution or to the Commonwealth, but not of a nature or extent that meets the description of interference. It is in the nature of a consequence, rather than an interference.  Helicopter’s case on the principle point of improper interference must fail.

Second issue: whether, notwithstanding that it may cause interference with the due administration of criminal justice, the Coroner has power to require Mr Lomas to give evidence

121    The Commonwealth accepts that the Coroners Act is not expressed in terms that allow the Coroner to exercise her Honour’s powers in a way that would result in a direct and substantial interference with the accusatorial system of justice. Consequently, the Commonwealth also accepts that if the order as proposed by the Coroner did effect a fundamental alteration of the system in the sense discussed in X7, or have the practical effect that an accused person “would be bound on pain of punishment to answer questions designed to establish that he is guilty of the offence with which he is charged”, citing Hammond at 198, then the inquest could not proceed with the calling of Mr Lomas. However, as the requisite interference with the criminal proceedings has not been established, it is not necessary to decide whether that concession was properly made, other than to note the absence of any overt authority of that kind. Consideration of the Coroner’s statutory authorisation to engage in what would otherwise constitute such interference does not arise and is best left for a case in which it does arise.

The balance of Helicopter’s claim for relief

122    The Coroner has the following express powers under the Coroners Act, which are necessarily to be exercised in accordance with the objects of the Act:

(1)    the power to hold a hearing: s 34;

(2)    the power to adjourn a hearing from time to time and from place to place, and, implicitly, a corresponding power not to so adjourn a hearing: s 35; and

(3)    the power to subpoena witnesses to produce a document or give evidence: s 43.

123    It may be seen that the above powers underpin the decision by the Coroner to require Mr Lomas to appear at the resumed inquest to give evidence, the Coroner having issued a subpoena to Mr Lomas and having declined to grant an adjournment. Except in the pleaded sense to do with Helicopter’s interests in defending the criminal proceedings brought against it, Helicopter has not suggested that the exercise of any those powers was not available or improper.

124    In light of the above characterisation of the impugned decision and identification of the sources of power for making that decision, Helicopter faces a very steep hurdle in establishing the alternative pleaded bases for relief in [38], [39], [40] or [45] of the FASOC. Each claim will now be dealt with in turn. Helicopter does not rely upon [41]-[43] or [45] of the FASOC, which depended upon an alternative characterisation of the Coroner’s decision, in light of the Commonwealth’s admission that the Coroner must be taken to have decided that Mr Lomas was required to give evidence at the resumed inquest.

125    Paragraph 38 of the FASOC asserts that the decision to require Mr Lomas to appear at the resumed inquest to give evidence was not authorised by the enactment pursuant to which it was purported to be made. The particulars refer to a general enactment which is said not to confer power to compulsorily question a person who was the guiding mind of a corporation on matters for which the corporation is facing criminal charges. That form of pleading in one part suggests that the source of power is obscure or indirect, while in the other part relies on some degree of specificity. The power is clear and it is not to be read as fettered in the manner suggested unless Helicopter discharges the burden of showing why that is so, going beyond the interference arguments that have failed.

126    The form in which the claim in [38] of the FASOC is pleaded amounts to the proposition that ss 34 and 35 of the Coroners Act did not, respectively, authorise the issuing of the subpoena to Mr Lomas, or authorise the refusal to adjourn the inquest beyond the date at which that subpoena was returnable. That proposition cannot be accepted. Even if the refusal of the adjournment involved or entailed rejecting or not accepting arguments advanced by Helicopter as to why the adjournment should be granted until after the criminal proceedings had concluded, that does not deny a valid source of power. Nor has the power in question been shown to be fettered in the manner suggested by reason of what may happen if Mr Lomas is actually called to give evidence. The power exercised was directed to securing his attendance to give evidence, rather than what might happen when he was about to do so. This pre-emptive aspect of Helicopter’s case based upon the interference argument has failed and cannot improve by being advanced in this collateral way to the same end. This aspect of Helicopter’s claim must fail.

127    Paragraph 39 of the FASOC asserts that the decision to require Mr Lomas to appear at the resumed inquest to give evidence was an improper exercise of power because:

(1)    the Coroner failed to take into account a relevant, in the public law sense of mandatory, consideration, being the matters detailed in [36] and [37] of the FASOC, reproduced at [34] above, essentially detailing the forensic advantages in the conduct of the criminal proceedings arising from Mr Lomas giving evidence that would otherwise not be available to the prosecution or to the Commonwealth as a co-defendant; and

(2)    it constituted an exercise of discretionary power that was so unreasonable that no reasonable person could have exercised it or, alternatively, was an abuse of that power, because Helicopter’s defence of the criminal proceedings would be compromised by Mr Lomas giving evidence, and the rejection of a submission to that effect was so irrational that refusing to adjourn the inquest was unreasonable.

128    It has not been established, and it is not otherwise apparent, how an issue which goes no further than raising a discretionary reason, however compelling it might be thought to be, to adjourn the inquest hearing until the criminal proceedings have concluded, rises to the level of a mandatory relevant consideration. Nor has it been shown why, if such an argument is not accepted, this is even close to the territory of Wednesbury unreasonableness, abuse of power or irrational or unreasonable decision-making.

129    Once Helicopter failed to establish the primary basis for the protection it asserted it was entitled to, there was nothing unreasonable in the Wednesbury sense, nor any abuse of power, nor anything irrational or unreasonable in declining to provide the same protection by declining to defer the calling of Mr Lomas until the criminal proceedings against Helicopter are concluded. No authority relied upon by Helicopter compels any other conclusion. The Coroner, being a senior judicial officer, can be expected to address any questions that may arise when the time comes for Mr Lomas to give evidence, but her Honour can do so with the assurance that whatever decision is made, provided it accommodates Mr Lomas’ legitimate interests, will not constitute any actionable interference in any present or reasonably anticipated criminal proceedings. This aspect of Helicopter’s claim must fail.

130    Paragraph 40 of the FASOC, when adjusted to accommodate the way in which it was argued, asserts that the decision to require Mr Lomas to appear at the resumed inquest to give evidence involved an error of law, relying on:

(1)    the matters pleaded at [38], being the lack of legislative authority to make that decision in the context of Mr Lomas being said to be the relevant guiding mind of Helicopter;

(2)    the Coroner having erred in finding that s 56(6) of the Coroners Act had no application, when her Honour should have found that it created a duty not to hold the inquest if satisfied that it should not continue by reason of concurrent criminal proceedings; and

(3)    the Coroner having erred by holding that Mr Lomas’ interests could be protected by relying on the privilege against self-incrimination, when her Honour should have held that s 51B did not authorise her Honour to require him to give evidence if there existed a real risk that his evidence would result in him incriminating himself in respect of offences for which s 51B did not protect him.

131    The first particular to [40] of the FASOC, relying on the matters pleaded at [38] of the FASOC, must fail for the same reasons as [38] failed. There was clear legislative authority for the decision to require Mr Lomas to appear at the resumed inquest to give evidence and no fetter established to apply at the point in time when the power was exercised.

132    The second particular to [40] of the FASOC depends on an untenable interpretation of s 56(6) of the Coroners Act. Section 56 is within Division 5.5, entitled “Indictable offences”. Section 58, insofar as it concerns inquests, is principally directed to the procedure to be adopted during an inquest when the Coroner has reasonable grounds for believing that a person mentioned at the inquest has committed an indictable offence. The usual course is to advise the prosecution authorities and to not allow the inquest to continue, save only in a very limited way until certain steps have been taken. However, under s 56(6), even that limited continuation of an inquest must not take place if the Coroner is satisfied that should not happen. Section 58A then dictates when an inquest may proceed.

133    Helicopter contends that the additional power to stop an inquest altogether applies when summary offences are in contemplation, such that the Coroner erred in confining herself to the general power of adjournment in s 36. This argument is without merit. There is simply no basis for applying any provision in Division 5.5 to any circumstance concerning summary criminal proceedings. The legislative intent to confine the longstanding suspension of inquests pending criminal charges to indictable offences could not have been much clearer. This aspect of Helicopter’s claim must fail.

134    The third particular to [40] of the FASOC concerns s 51B of the Coroners Act. That provision mirrors s 128 of both the Evidence Act 1995 (Cth) and the Evidence Act 2011 (ACT). It provides that the privilege against self-incrimination can, in certain circumstances, be overridden by the Coroner when a witness is required to give evidence under the protection of a certificate issued pursuant to that provision. The effect of such a certificate is to prohibit the use of that evidence in any court in the ACT. It is submitted by Helicopter that s 51B provides ineffective protection for someone in Mr Lomas’ position, given that it cannot prevent such evidence being used in any prosecution of him for federal work health and safety offences that may be brought against him in Tasmania, where he resides. The Commonwealth did not dispute this, without expressing any view as to whether such a prosecution was likely. Of course, that is not a matter for the Commonwealth, given the statutory independence of the CDPP. If the Commonwealth Attorney-General directs the CDPP to do, or not do something, he must table a notice to that effect in both Houses of Parliament, practically making any such direction highly unlikely: see s 8, Director of Public Prosecutions Act 1983 (Cth).

135    It may be assumed for the purpose of this proceeding that the protection of a certificate under s 51B would not, of itself, prevent evidence adduced at the inquest from Mr Lomas being relied upon by the CDPP in the event that he were to be prosecuted in Tasmania for offences akin to those presently brought against Helicopter and the Commonwealth. However, the Commonwealth contends that this possibility and therefore risk, however remote, would potentially be a compelling reason for the Coroner not to require Mr Lomas to give evidence if he objected to doing so. The Commonwealth’s point is that it is far from certain that Mr Lomas will in fact give evidence, or on what terms he may do so. Indeed, another possibility is that the CDPP may consider giving Mr Lomas an undertaking that it will not use any of his evidence against him under s 9(6B) of the Director of Public Prosecutions Act, which has the effect of rendering any evidence he may give inadmissible, including in Tasmania. The CDPP may, alternatively, provide a letter of comfort to the same effect, practically rendering such a prosecution impossible.

136    The point to be made from the foregoing is that the final determination of how s 51B should be applied depends on facts and circumstances that are yet to be presented to the Coroner, including the stance taken by Mr Lomas. In those circumstances, it is premature and inappropriate for this Court to intervene on what, in substance, is a speculative basis. It follows that this aspect of Helicopter’s case must fail.

137    The pleadings at [38], [39] and [40] of the FASOC are also relied upon at [44] to assert that in each of these respects, the decision to require Mr Lomas to appear at the resumed inquest to give evidence was made in excess of jurisdiction. As it has been concluded that there was no want of authority to order Mr Lomas to appear and give evidence, it cannot be established that there was any improper exercise of power or error of law. In the absence of a finding of improper interference, mere forensic disadvantage to Helicopter does not entail any error, let alone jurisdictional error, in requiring Mr Lomas to give evidence, including on matters pertinent to the criminal proceedings. It would, of course, be a different matter if Mr Lomas was charged with a like offence. It will be a matter for the Coroner to assess the likelihood of that happening, in the way that coroners are used to doing in the course of any inquest in which a witness may be in such a situation. This is not addressed by the Coroner failing to exercise jurisdiction, or avoiding the exercise of jurisdiction, in accordance with the requirements of the Coroners Act: cf Grassby v The Queen (1989) 168 CLR 1 at 17-18. This aspect of Helicopter’s claim must fail.

Discretion

138    The following assumes that the conclusions reached above as to the substance of Helicopter’s case are incorrect. It is convenient to consider submissions made by the Commonwealth at the outset, which constituted an argument that this proceeding was, in any event, premature.

139    The Commonwealth submits that while it can be safely assumed that the Coroner will issue a fresh subpoena to secure the attendance of Mr Lomas at the resumed inquest, and that he will be obliged to enter the witness box, from that point on it is difficult to know what will occur. The Commonwealth pointed out in this regard that it had indicated on 21 December 2017 before the Coroner that it would be desirable if an indication could be given as to whether Mr Lomas would claim any privilege, but that no indication had been given to date of which the Commonwealth was aware. Accordingly, it is said that Mr Lomas may enter the witness box and refuse to adopt his statement and answer any questions on the ground that the answers tend to incriminate him, being a course that he is entitled to take. The Commonwealth submits that, if he invokes a privilege and further refuses to answer questions even under the protection of a certificate, the Coroner can only direct him to answer questions if the interests of justice so require. As the certificate that can be given under s 51B does not provide Mr Lomas with protection against the evidence being used if proceedings under the Work Health and Safety Act are commenced against him outside the ACT, the Commonwealth submits that it is doubtful that he can be directed to answer any questions. The Commonwealth therefore submits that, in those circumstances, it may well be the end of the evidence, and the inquest can proceed to submissions and the Coroner can proceed to make findings.

140    The Commonwealth submits that, if clarity in relation to Mr Lomas’ position is all that is achieved by the resumption of the inquest and the issue of the subpoena, it will have had considerable value by eliminating the last hurdle to the parties forming a view as to whether there is any further evidence that should be heard before proceeding to submissions in the inquest.

141    Alternatively, the Commonwealth submits, in the event that Mr Lomas is willing to give evidence voluntarily, either with or without the protection of a s 51B certificate, a question then arises as to the scope of the questioning which the Coroner will allow in light of the criminal charges which have been laid. So far, the Coroner has only indicated that her Honour is not prepared to give the general direction that Helicopter had sought. The Commonwealth submits that it is clear from her Honour’s decision on that issue that her Honour is aware that she must still determine whether any questions asked are appropriate and, accordingly, there is yet to be a decision made as to whether any particular question should be allowed.

142    The Commonwealth also points to the power reposed in the Coroner under s 40 of the Coroners Act, by which her Honour has a discretion to direct that a hearing, or part of the hearing, take place in private and to give directions prohibiting or restricting publication or disclosure of evidence. Accordingly, the Commonwealth submits that it will be open to the Coroner to take steps to ensure that any evidence given by Mr Lomas be taken in private to ensure that he does not give the prosecution in the criminal proceedings any additional advantage. Her Honour could simply make directions to ensure that the Commonwealth does not make direct use of the evidence in its defence of the criminal proceedings against it.

143    The Commonwealth submits that, even if the limitation on her Honour’s statutory power was as broad as Helicopter claims, any advantage depends on Mr Lomas deciding not to claim privilege against self-incrimination or proceeding to answer questions despite having made the claim, the Commonwealth being permitted to ask questions of the subject matter of the criminal proceedings, those questions being asked in open court and no direction being given by the Coroner in relation to the use and disclosure of that evidence. The Commonwealth submits that this Court cannot and should not assume that the Coroner will conduct proceedings in a manner which disregards Helicopter’s entitlement to a fair trial. The proper point at which to determine whether the questioning of Mr Lomas will result in prejudice to the administration of justice is the point at which questions are asked. The Commonwealth submits that the Coroner is in a position to control whether the prosecution gets access to the answers of Mr Lomas, including by closing the Court and making orders which would prevent the Commonwealth from tendering any statements by Mr Lomas in the criminal proceedings. Other more refined directions could be made. The Commonwealth submits that it is only when those matters are being considered by the Coroner that it is possible to determine whether the questioning of Mr Lomas will involve the conferral of any impermissible advantage on the prosecution or the Commonwealth.

144    The Commonwealth therefore submits that this Court is not in a position to determine what the impact on the conduct of the criminal proceedings is likely to be if the inquest resumes and Mr Lomas is called as a witness. The Commonwealth submits that this Court should not proceed on the basis that the Coroner will allow matters to proceed in a matter which unfairly or improperly interferes with Helicopter’s entitlement to a fair trial.

145    The Commonwealth’s submissions on discretion should be accepted. The Coroner has particular powers that may be exercised at an inquest hearing. As the Commonwealth points out, those powers include a power, when the Coroner is of the opinion that it is in the public interest or in the interests of justice, to depart from the standing requirement in s 40(1) that hearings must be conducted in public, to direct that some or all of the hearing be in private and/or to give directions prohibiting or restricting publication or disclosure of evidence: s 40(2). As the hearing has not progressed to the point of Mr Lomas being called, the occasion for the exercise of either of those powers has not yet arisen. Nor has any question been ventilated at the inquest as to the adequacy or otherwise of those protections in relation to either Mr Lomas’ rights or Helicopter’s rights, if relevant.

146    As to what may happen in the event that Mr Lomas attends and is called to give evidence, this Court should exercise restraint by generally declining, other than in exceptional circumstances, to fracture or otherwise intervene in the ordinary conduct of inquest proceedings in the same way as that approach is well established for criminal committal proceedings: see Lamb v Moss (1983) 49 ALR 533 at 546.4, 557.3, 564.8; see also Sankey v Whitlam (1978) 142 CLR 1 at 25-6, 80, 81-2.

147    It follows that, insofar as Helicopter’s present claim for relief turns on a real risk to the administration of criminal justice and thereby a real danger of contempt of court taking place, and assuming that, contrary to the finding above, this has been made out, the question of the nature and extent of the powers already exercised, or available to the Coroner to exercise, makes this application premature as no such interference may in fact eventuate. It is neither necessary nor appropriate for this Court, as a matter of discretion, to determine whether and, if so, upon what basis, Mr Lomas should be subpoenaed again to appear at the resumed inquest; or to determine how powers exercisable at the inquest hearing should be exercised in the event that he is subpoenaed and does appear at the resumed inquest.

148    In particular, and especially in the present situation where there is no evidence as to Mr Lomas’ position in relation to him being called or giving evidence, whether willingly or not, it is premature to consider and decide:

(1)    whether or not Mr Lomas should be subpoenaed again to appear at the resumed inquest, and whether there should be any restriction on the basis for which he might be called as a witness;

(2)    whether or not s 51B of the Coroners Act affords sufficient protection to Mr Lomas, and whether he should be compelled to give evidence; and

(3)    whether any of the other powers available to the Coroner are sufficient to meet any legitimate concerns that are raised about the impact on a fair trial, remembering the principles reproduced from Nutricia above at [119].

149    Even if Helicopter has made good its point of principle as to the risk of a contempt of court, this application must be regarded as premature. No irreversible step has been taken beyond a subpoena issuing, the Coroner declining to excuse Mr Lomas from attending and the Coroner declining to give a blanket, pre-emptive, direction as to the evidence to be adduced or not adduced. It is not necessary or appropriate for this Court to step into the Coroner’s shoes and purport to predetermine how the discretion in s 51B should be exercised, assuming it falls to be exercised at all. That is particularly so when there is no evidence of Mr Lomas’ position as to him being called, or giving evidence, whether willingly or not. That discretion is best left to be exercised upon the basis of the facts and circumstances that prevail at the relevant time.

Conclusion

150    The application must be dismissed. Helicopter must pay the Commonwealth’s costs, and also the costs of Captain Wood’s widow, the second respondent, including by way of reimbursement to the Commonwealth in full if those costs have already been paid.

Associate:

Dated:    29 June 2018