FEDERAL COURT OF AUSTRALIA

Helicopter Resources Pty Ltd v Commonwealth of Australia [2019] FCAFC 25

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 (each dismissing the proceeding) and order 3 (requiring the applicant to pay the respondents’ costs), each made on 29 June 2018, be set aside and in lieu thereof it be ordered that:

(a)    The operation be stayed of the subpoena dated 12 April 2018 issued, or any further subpoena to be issued, by the third respondent to Captain David Lomas to give evidence at the hearing in the inquest into the death of Mr David Warburton Wood, until the finalisation of the prosecution of the appellant in proceedings in the ACT Magistrates Court (CC 44152, 44153 and 44154).

(b)    The first respondent pay the appellant’s costs of the proceedings before the primary judge, as agreed or assessed.

3.    The first respondent pay the appellant’s costs of the appeal, as agreed or assessed.

4.    Liberty to apply on 24 hours’ notice.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This appeal is from orders of the primary judge made on 29 June 2018 dismissing with costs the originating application for review.

2    The appeal concerns an inquest and concurrent criminal proceedings in relation to the death of Captain David Wood at Davis Station in the Australian Antarctic Territory on 12 January 2016. The appellant was the employer of Captain Wood. The appellant in turn was engaged by the first respondent, the Commonwealth of Australia, through the Australian Antarctic Division (AAD) to provide helicopter support services. On 11 January 2016, Captain Wood landed a helicopter across a hidden crevasse in ice and, whilst reboarding, slipped and fell into the crevasse. On the following day, Captain Wood died.

3    An inquest into Captain Wood’s death is being conducted under the provisions of the Coroners Act 1997 (ACT). The hearing commenced on 19 September 2017. The Coroners Act applies in the Australian Antarctic Territory by virtue of the provisions of the Australian Antarctic Territory Act 1954 (Cth).

4    On 20 December 2017, the appellant and the Commonwealth were each charged on information and summons in the Magistrates Court of the Australian Capital Territory with three offences against s 32 of the Work Health and Safety Act 2011 (Cth) (WHS Act) (the charges). By s 10, the WHS Act binds the Commonwealth and the Commonwealth is liable for an offence against the Act. By s 11, the WHS Act extends to every external Territory.

5    Section 32 of the WHS Act was, at the relevant time, as follows:

32    Failure to comply with health and safety duty—Category 2

A person commits a Category 2 offence if:

(a)    the person has a health and safety duty; and

(b)    the person fails to comply with that duty; and

(c)    the failure exposes an individual to a risk of death or serious injury or illness.

Penalty:

(a)    In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150 000.

(b)    In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300 000.

(c)    In the case of an offence committed by a body corporate—$1 500 000.

6    The alleged breaches of duty are under s 19 of the WHS Act, which is directed to ensuring the safety of workers. That provision was, relevantly, in these terms:

19    Primary duty of care

(1)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)    workers engaged, or caused to be engaged by the person; and

(b)    workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)    the provision and maintenance of a work environment without risks to health and safety; and

(b)    the provision and maintenance of safe plant and structures; and

(c)    the provision and maintenance of safe systems of work; and

(d)    the safe use, handling and storage of plant, structures and substances; and

(e)    the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f)    the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g)    that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

….

7    We now summarise the charges. It is the third charge which the primary judge found directly overlapped with the subject of the inquest.

8    The first charge, against each of the appellant and the Commonwealth, relates to events on or about 8 December 2015 and relates to failing to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Mr Bryan Patterson, an employee of the appellant assigned to Davis Station to work with the Commonwealth (AAD).

9    The second charge, against each of the appellant and the Commonwealth (AAD), relates to events on or about 28 December 2015 and relates to failing to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Captain Wood and Mr Paul Sutton, another employee of the appellant assigned to Davis Station to work with the Commonwealth (AAD), in that the appellant permitted and the Commonwealth (AAD) required “the said workers to land helicopters and walk on the ice surface at deep field fuel cache sites,” including the incident site, being a deep field fuel cache site on the West Ice Shelf, without first assessing those sites or those sites having been assessed, in circumstances where landing on or traversing the ice at those sites was not safe because of the likely presence of crevasses, including crevasses which were hidden by snow bridges.

10    The third charge, against each of the appellant and the Commonwealth (AAD), relate to the events “[o]n or about 11 January 2016”. It is alleged that the appellant failed to comply with its duty in that it failed to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Captain Wood and Mr Sutton, in that it permitted the said workers to land helicopters and walk on the ice surface at deep field fuel cache sites, including the incident site, without those sites having been assessed, in circumstances where landing on or traversing the ice at those sites was not safe because of the likely presence of crevasses, including crevasses which were hidden by snow bridges. It is alleged that the Commonwealth (AAD) failed to comply with its duty in requiring those workers to land helicopters and walk on the ice surface without first assessing those sites, in the same circumstances.

11    The general topic covered by the information and summons is the risk mitigation measures said to be reasonably practicable and said to have not been taken by both the appellant and the Commonwealth (AAD) to ensure the safety of pilots on missions in the Australian Antarctic Territory.

12    The charges are being prosecuted by the Commonwealth Director of Public Prosecutions (CDPP) as instructed by the Commonwealth Work, Health and Safety Regulator (Comcare). The criminal trial has now been listed for hearing on 19 February 2019. It is anticipated that the trial may take six weeks.

13    By letter dated 31 January 2018, the Commonwealth notified the office of Chief Coroner it requested that the appellant’s chief pilot, Captain David Lomas, be available for cross-examination at the inquest. The non-exhaustive list of topics was as follows:

1.    the content and implementation of Helicopter Resources policies and procedures;

2.    the training, support and resources provided to pilots especially in relation to crevasse risk identification and management;

3.    his responsibilities and role as Chief Pilot (including with respect to the selection of Chief Pilot);

 4.    the responsibilities and role of Senior Pilots and the Pilot in Charge;

5.    aspects of Helicopter Resources’ relationship with the Commonwealth, especially in relation to responsibilities for risk identification and management; and

6.    Helicopter Resources’ approval to conduct polar operations, low-flying, and sling-load operations.

14    As will be seen the Coroner, who is also a magistrate of the Magistrates Court, has, in essence, ruled that relevant questions not already addressed in written evidence may be asked, subject to individual evidentiary rulings.

15    The primary judge found, at [11], that Captain Lomas is proposed to be called as a witness at the inquest in accordance with the request made by the Commonwealth. A detailed statement of Captain Lomas is already in evidence before the Coroner. His Honour said:

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.

16    The adequacy of risk mitigation measures is central to the position of the appellant and the Commonwealth (AAD) as co-accused in respect of the various charges. Steps taken or not taken may have a material bearing on the allocation of responsibility for the different factors that contributed to the death of Captain Wood. These factors will be relevant both to the inquest and to the criminal trial. The questions may affect the determination of the guilt or otherwise of the appellant and the Commonwealth (AAD).

17    The appellant seeks to restrain the Coroner’s Court from allowing the questioning of Captain Lomas who is to be compelled under subpoena to give evidence.

18    The appellant contends that Captain Lomas being compelled to give evidence on the same topic as the charges against it constitutes an interference with the accusatorial system and may constitute a contempt of court by the Coroner’s Court.

JURISDICTION OF THE FEDERAL COURT

19    The primary judge noted, at [36], that it was “common ground that this Court has jurisdiction and power to intervene if properly called for.”

20    The appellant’s outline of written submissions filed on 23 October 2018 in this appeal included the proposition, at [17], that the “Coroner is conducting the Inquest under the power of a Commonwealth statute. Accordingly, she does so as an ‘officer of the Commonwealth’.” This seemed on the face of it to be a doubtful proposition and the Court sought the assistance of counsel as to the source of the Court’s jurisdiction.

21    In short written submissions filed with the leave of the Court on 23 November 2018, the appellant relied on its outline of written submissions before the primary judge, which had contended that the matter arose under a law made by the Commonwealth Parliament, being the Australian Antarctic Territory Act. It followed, in the appellant’s submission, that the jurisdiction of this Court was conferred either by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) or by s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) read with s 5 of that Act, the decision of the Coroner falling within the definition of “decision to which this Act applies” in s 3(1) of that Act. The applicant also referred in its short written submissions to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as a potential further source of jurisdiction.

22    So far as relevant, s 39B of the Judiciary Act is as follows:

39B    Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction    

(1)    ….

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

  (a)    …; or

  (b)    …; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

Note:    Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.

Jurisdiction for certain writs that relate to criminal prosecutions etc.

(1B)    If a decision to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or Territory:

(a)    the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and

(b)    the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced is invested with, or has conferred on it, jurisdiction with respect to any such matter.

(1C)    Subject to subsection (1D), at any time when:

(a)    a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or

(b)    an appeal arising out of such a prosecution is before a court of a State or Territory;

the following apply:

(c)    the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

(d)    the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter.

23    The appellant submitted that jurisdiction was not excluded by the words “other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter” in s 39B(1A)(c) of the Judiciary Act nor by the words “in relation to a related criminal justice process decision” in s 39B(1C) or in s 9A of the AD(JR) Act. The appellant submitted there was no relationship between the relief claimed, or the application made by it, and any decision made in the criminal justice process. The appellant’s claims were limited to relief in respect of decisions made in the inquest and outside the criminal justice process. The appellant referred to Chief Executive Officer of Customs v Jiang [2001] FCA 145; 111 FCR 395; McCarthy v Commissioner of Taxation [2013] FCA 715; 249 FCR 140; and El Khouri v Attorney-General [2018] FCA 1488.

24    Section 6 of the Australian Antarctic Territory Act is in the following terms:

6    Laws of Australian Capital Territory to be in force

(1)    Subject to this Act, the laws (other than the criminal laws) in force from time to time in the Australian Capital Territory (including the principles and rules of common law and equity so in force) are, by virtue of this section, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory.

(2)    Subject to this Act, the criminal laws in force from time to time in the Jervis Bay Territory are, by virtue of this section (so far as they are applicable to the Territory and are not inconsistent with an Ordinance) in force in the Territory as if the Territory formed part of the Jervis Bay Territory.

(2A)    Chapter 2 of the Criminal Code does not apply in relation to, or in relation to matters arising under, a law in force in the Territory under subsection (1) or (2).

(3)    Subsection (1) does not extend to a law in force in the Australian Capital Territory, if that law is an Act or a provision of an Act other than:

(a)    section 6 of the Seat of Government Acceptance Act 1909; and

(b)    sections 3, 4 and 12C of the Seat of Government (Administration) Act 1910 and the Schedule to that Act.

(4)    Subsection (2) does not extend to a criminal law in force in the Jervis Bay Territory if that law is an Act or a provision of an Act.

25    Section 10 of the Australian Antarctic Territory Act is also relevant insofar as the ACT Coroners Act continues in force as the Coroner’s Court, and as a court of record, the Coroner’s Court previously established under the Coroners Act 1956 (ACT): see s 4 of the Coroners Act.

26    Section 10 of the Australian Antarctic Territory Act provides:

10    A.C.T. courts to have jurisdiction in the Territory

(1)    The courts of the Australian Capital Territory have jurisdiction in and in relation to the Territory.

(2)    The Australian Capital Territory Supreme Court Act 1933 and the practice and procedure of each court of the Australian Capital Territory in force from time to time apply in the Territory as if:

(a)    where the court is exercising its jurisdiction in relation to criminal laws in force in the Territory under section 6—the Territory formed part of the Jervis Bay Territory; and

(b)    in any other case—the Territory formed part of the Australian Capital Territory.

(3)    For the purposes of subsection (2), a reference in the Australian Capital Territory Supreme Court Act 1933 to an Ordinance or enactment is a reference to an Ordinance or enactment, as the case may be, in force under this Act.

27    For present purposes, we see no reason to read the words “each court of the Australian Capital Territory” in s 10 to mean anything less than the bodies established by the Australian Capital Territory as courts and so described in that Territory’s legislation.

28    The first respondent, in its short written submissions filed with the leave of the court on 6 December 2018, agreed that the ACT Coroner’s Court had jurisdiction in relation to the death of Captain Wood by reason of s 6(1) of the Australian Antarctic Territory Act. The first respondent accepted that the two potential exclusions, in ss 39B(1A)(c) and 39B(1C) of the Judiciary Act, did not apply. The first respondent submitted that the same submissions applied equally to the phrase “related criminal justice process decision” as used in s 9A of the AD(JR) Act, although noting its contention that relief was not available under the AD(JR) Act on the basis that the decisions challenged were no longer operative.

29    We are satisfied that this Court has jurisdiction. The decision of the Coroner sought to be impugned was made under the Coroners Act operating in the Australian Antarctic Territory as a law of the Commonwealth by virtue of s 6(1) of the Australian Antarctic Territory Act. The relevant provisions of the Coroners Act invoked by the appellant are ss 36 and 58(6). The “matter” or controversy is the validity of the decision to issue a subpoena to Captain Lomas to give evidence. Also the appellant seeks to prohibit the Coroner’s Court from requiring certain persons to give evidence in the inquest prior to finalisation of the prosecution of the appellant. That is a further aspect of the “matter”. In those circumstances it is clear that the matter is a matter arising under a law made by the Parliament within s 39B(1A)(c) of the Judiciary Act.

30    We are also of the opinion that s 8, read with s 5, of the AD(JR) Act is available as a source of jurisdiction: see also s 19 of the Federal Court of Australia Act 1976 (Cth). This is because the decision sought to be impugned is a decision of an administrative character made under the Coroners Act as in force in the Australian Antarctic Territory by virtue of a Commonwealth Act, being the Australian Antarctic Territory Act, and not excluded by Sch 1 to the AD(JR) Act. The decision of the Coroner is thus a “decision to which this Act applies” within the meaning of s 3(1) of the AD(JR) Act.

31    This leaves for consideration the provisions of the Judiciary Act and of the AD(JR) Act concerning concurrent criminal proceedings.

32    So far as concerns the Judiciary Act, the first issue is whether the matter is “a matter in respect of which a criminal prosecution is instituted or any other criminal matter” within the meaning of s 39B(1A)(c). In our opinion, it is clear that the matter we have identified is not one in respect of which a criminal prosecution has been instituted since the present matter is the validity of the decision of the Coroner under ss 36 or 58(6) of the Coroners Act. Similarly, the matter we have identified is not “any other criminal matter” as referred to in s 39B(1A)(c).

33    Turning to s 39B(1C), “a court of a…Territory” would include the ACT Coroner’s Court as it is not turned into any other court by s 10 of the Australian Antarctic Territory Act and “Territory” would include the Australian Capital Territory since s 3A of the Judiciary Act provides that that Act extends to all the Territories.

34    Having said that, in our opinion it is clear that the decision of the Coroner’s Court sought to be impugned is not an application by the defendant in a prosecution in relation to a decision made in the criminal justice process in relation to the offence, within the meaning of s 39B(1C). In particular, in our opinion, the decision is not “a decision in connection with the investigation, committal for trial or prosecution of the defendant” for the purposes of the definition of “related criminal justice process decision” in s 39B(3). Relevantly, the inquest stands outside and separate from such a decision in the criminal justice process.

35    In addition, we would doubt whether the Coroner is an officer of the Commonwealth within s 39B(1C)(c) as, again, s 10 of the Australian Antarctic Territory Act does not deem the courts of the Australian Capital Territory to be anything other than what they are: it merely confers jurisdiction on them in relation to the Australian Antarctic Territory.

36    So far as concerns the AD(JR) Act exclusion, s 9A(1) uses the language of “related criminal justice process decision”, which is defined in s 9A(4) in the same terms as in s 39B(3) of the Judiciary Act. We follow the same reasoning in [34] above and the same conclusion applies.

37    Although unnecessary to decide it is also our opinion that, contrary to the submission on behalf of the appellant, s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) would not assist because the definition of “Territory” in s 3 of that Act excludes the Australian Capital Territory: see Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 at [29].

38    The decision in Crosby v Kelly also shows that s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) may achieve that result in that the Federal Court may exercise jurisdiction conferred on it by a provision of a law of the Australian Capital Territory relating to cross-vesting of jurisdiction. The problem with that analysis for present purposes is that s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) proceeds by reference to “ACT matters”, defined in the Dictionary to that Act to mean, relevantly, “a matter … in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth”. Since in the present case the Supreme Court of the Australian Capital Territory has jurisdiction by virtue of s 10 of the Australian Antarctic Territory Act it would appear that s 9(3) does not assist.

39    It follows, in our opinion, that the cross-vesting legislation does not operate to give this Court jurisdiction in this matter.

BACKGROUND

40    It is necessary to say something more about the steps leading up to this appeal.

41    Captain Lomas himself was based in Hobart rather than in the Australian Antarctic Territory at the time of the death. He will be unable to give direct evidence of the events in Antarctica leading to Captain Wood’s death. Nonetheless, the Coroner has ruled that Captain Lomas will be required to give evidence at the inquest. She so ruled on 12 April 2018.

42    The inquest was scheduled to resume on 1 May 2018.

43    The appellant contended in written submissions before her Honour, seeking that the inquest be adjourned until the criminal proceedings in the Magistrates Court had been concluded, that not only was it likely to be disadvantaged by the cross-examination of its chief pilot when criminal proceedings were pending, but also that the Commonwealth (AAD) was likely to obtain an advantage as a co-accused by its cross-examination, in advance, of Captain Lomas.

44    Relevant to this is the fact that the prosecution brief of evidence may have been prepared without contemplation of calling Captain Lomas as a witness. He may not be called at the trial by the prosecution unless the Commonwealth (AAD) or the appellant requests that he be called.

45    For present purposes pending delivery of judgment in this appeal, the appellant had the benefit of injunctive relief which precluded the Coroner from requiring Captain Lomas, or any other director or employee of the appellant, to answer any questions in the inquest into the death of Captain Wood.

46    At a point in time when there was no suggestion of any criminal prosecution, Captain Lomas co-operated with authorities, giving a detailed record of conversation to the Australian Federal Police on 27 July 2016, but as stated, there is no evidence of an intention on the part of the prosecution to call Captain Lomas as a witness in its case in the criminal trial or to prosecute him.

47    On 7 July 2017, about a year after Captain Lomas had given that statement, the solicitors for the Commonwealth (AAD) wrote to counsel assisting the inquest, saying they had been informed by Comcare that it considered there were reasonable grounds for believing that the Commonwealth had contravened s 32 of the WHS Act and that Comcare was considering filing a complaint or summons. The correspondence simply indicated that the solicitors would be pleased to discuss the matter, and any relevant consequences to the coronal process, with counsel assisting.

48    The solicitors for the Commonwealth (AAD) emailed counsel assisting the inquest again on 15 September 2017 on the topic of self-incrimination, noting that the scope of a certificate under s 51B of the ACT Coroners Act, preventing the use in other proceedings of a witness’ evidence before a Coroner given after objection that the evidence might incriminate him or her, was confined in its application to “any proceeding in an ACT court or before any entity authorised by a territory law”. The solicitors made the point that if the CDPP commenced a prosecution in a federal court, or there were otherwise some action commenced in a federal court, the certificate would not have any effect.

49    The managing director of the appellant is Mr English. Comcare wrote to Mr English on 11 December 2017, expressing its view that there were reasonable grounds for believing the appellant may have committed a criminal offence, namely, a contravention of s 32 of the WHS Act. It was investigating that topic. Comcare wrote that it would like to provide the appellant with the opportunity to respond to the allegations that the appellant failed to comply with its duties in specified respects, by participating in a formal voluntary record of interview on 18 or 19 December 2017.

50    It will be recalled that the informations and summonses were filed in the ACT Magistrates Court on 20 December 2017.

51    On 21 December 2017, her Honour ordered, after hearing argument, that any application in respect of the progress of the hearing in light of the laying of the charges relating to the conduct of the parties was to be made in writing supported by any relevant evidence in affidavit form. She adjourned the hearing to 1 May 2018. The basis on which it was left on 21 December 2017 was the Coroner said she would not restrain the parties to identify topics for cross-examination but she would require them to identify witnesses required for cross-examination.

52    On 23 March 2018, the appellant, by its counsel, filed submissions, accompanied by an affidavit, seeking an adjournment of the inquest pursuant to s 36 of the ACT Coroners Act or, alternatively, s 58(6) of that Act until the criminal proceedings in the ACT Magistrates Court had been concluded. It made the following submissions:

    Sections 58 and s 58A of the ACT Coroners Act set out the procedure to be followed in circumstances where evidence emerged suggesting the commission of an indictable offence or where the Attorney-General presented (or the CDPP notified of an intention to present) an indictment for a related indictable offence. In those circumstances s 58 required the Coroner not to proceed further with the inquest until the relevant day to be calculated in accordance with s 58A. While the appellant was not charged with indictable offences, it was contended that the policy objective behind the provisions remained relevant.

    X7 v Australian Crime Commission (2013) 248 CLR 92 was relevant to the potential prejudice that the continuation of the inquest may present to the defence in the criminal proceedings, arising where a defendant is compelled by some collateral process to provide information in connection with pending criminal charges, thereby altering the accusatorial process in criminal proceedings. (By footnote, counsel stressed that the appellant did not make any submission based on any asserted privilege against self-incrimination, but rather the principles referred to in X7 dealing with the effect of the inquest on the accusatorial nature of the criminal process.)

    Various other authorities were cited in support of the contention and, once again, the commonality of evidence in the two proceedings was stressed in detail as was the general principle that civil proceedings should be deferred until criminal proceedings have been resolved where a party to the civil litigation has been charged with a criminal offence arising out of the same subject matter.

    The statement by Captain Lomas dated 9 October 2017 was also referred to. That statement was prepared for the purpose of the inquest, specifically addressing the following matters which, in all likelihood, would be dealt with in both the inquest (should it proceed) and the criminal proceeding:

(a)    matters concerning the appellant’s safety measures in flying activities;

(b)    Captain Lomas’ responsibility for compliance with safety requirements;

(c)    Captain Lomas’ qualifications and training of pilots, including those rostered to undertake work in the location of the incident;

(d)    the appellant’s operations and personnel located at the Davis Station, the experience of the appellant’s personnel, including in the Arctic and the Antarctic regions;

(e)    the appellant’s safety management system;

(f)    the use of survival clothing by the appellant’s personnel;

(g)    flying procedures that are followed, including in relation to matters of safety and risk identification (including identification of crevasses), particularly in Antarctica;

(h)    the manoeuvre undertaken by Captain Wood, namely, an external/sling load operation; and

(i)    matters that took place on the day of the incident and thereafter.

    At a practical level there would be a significant injustice in requiring the chief pilot of the appellant to give evidence at the inquest while the company was defending the prosecution. As a court of record which generally conducted its hearings in public, the hearings and findings of the inquest would be readily accessible. Other parties, including the Commonwealth (AAD) which was also being prosecuted for similar alleged breaches of the WHS Act in connection with the death of Captain Wood, would have a right to cross-examine Captain Lomas at the inquest. As the appellant had no right of privilege against self-incrimination, counsel submitted that it would not be afforded procedural fairness and its ability to run its defence of the prosecution may be unfairly prejudiced if its chief pilot and other witnesses were compelled to answer questions at the inquest prior to conclusion of the prosecution. The seriousness of the charges was stressed.

53    The information and summons are extensive. There does not appear to be any dispute at all that there would be significant overlap between the facts the subject of any cross-examination of Captain Lomas at the inquest and facts relevant to the criminal hearing.

54    On 4 April 2018, the Commonwealth (AAD) by its counsel filed submissions in response to the appellant’s application for an adjournment of the further hearing of the inquest, noting that the inquest conducted public hearings over 12 days, commencing on 19 September 2017 and concluding on 21 December 2017, with evidence being given from all witnesses involved directly in the events leading up to Captain Wood’s death and the entirety of the medical evidence. The public hearings were listed to resume for three days on 1-3 May 2018 in Melbourne, with Captain Lomas to be called to give evidence.

55    Counsel for the Commonwealth (AAD) stressed that:

    If the matter was adjourned pending the resolution of any criminal charges, the further delay was likely to be lengthy. At that point, no date had been set for any hearing in relation to the criminal matters, and the delay was likely to be of more than a year in the event that either the Commonwealth or the appellant pleaded not guilty. According to the submissions, that would require additional costs in the proceedings, require each party represented to reacquaint themselves with the evidence after a long delay, and may diminish the quality and accuracy of any findings made.

    It was mere happenstance that Captain Lomas had not yet given his evidence. Captain Lomas was an important witness for various reasons:

(a)    the relevant contractual arrangements provided that the appellant’s pilots bore responsibility for ensuring the safe delivery of helicopter services, including with respect to selection of safe landing areas;

(b)    that selection necessarily included the safety of the zone in which the pilot was required to undertake helicopter services;

(c)    just prior to his death, Captain Wood had selected a hazardous landing site whilst flying with and under the supervision of a senior pilot of the appellant. Captain Wood had placed the skids of his helicopter across a snow-covered crevasse;

(d)    that senior pilot had the responsibility under the AAD Standard Operating Procedure Operations Manual, vol 5 to provide a relevant job safety assessment for the task and also had responsibility for the safe conduct of the group sling load operations that day;

(e)    the Coroner had already heard evidence to the effect that that senior pilot failed to raise any issue about crevasses at the landing site when the AAD’s “Air Task Risk Assessment Process” was undertaken on the morning of the fatal flight;

(f)    the known existence of crevasses at the site was not lodged by that senior pilot into either the AAD or the appellant’s hazard identification systems, contrary to Standard Operating Procedures of both the AAD and the appellant;

(i)    the appellant’s “Pilots Operation Safety Manual” required that senior pilot to submit an “Operational Hazard Report” with respect to the presence of crevasses at the landing site, after consultation with the chief pilot;

(ii)    it appeared that no consultation between the senior pilot and Captain Lomas concerning crevasses at the landing site ever took place;

(iii)    no “Corrective Action Notice” was issued with respect to the identified crevassing at the site, contrary to the appellant’s “Instruction No 20”;

(g)    the Coroner had already heard evidence from two of the appellant’s pilots to the effect that they received no specific training with respect to the identification and management of crevasse risks in the Antarctic;

(h)    the appellant’s chief pilot had a responsibility for maintaining pilot proficiency;

(i)    the appellant’s Operations Manual required pilots to receive extensive briefing and discussion from the appellant on all aspects of Antarctic operations;

(j)    floating ice shelves were listed in that Operations Manual as examples of areas that were likely to be heavily crevassed;

(k)    training manuals indicated that crevasses “are usually covered by what are known as snow bridges which are easy to see from the air but can be very hard to see from surface level”;

(l)    the appellant’s operations certificate issued by the Civil Aviation Safety Authority (CASA) required, as a condition of certification, compliance with all these aspects of the appellant’s Operations Manual;

(m)    against that background, Captain Lomas had admitted that the appellant’s “helicopter pilots have limited expertise in identification of snow and ice hazards, such as crevasses and rely on the AAD for expertise in identifying an[y] such hazards and the safety of sites once personnel disembark from a helicopter”;

(n)    contrary to its statutory and contractual responsibilities, the appellant appeared to operate on the basis of an assumption that the Commonwealth (AAD) would undertake training of its pilots with respect to selection of safe landing sites;

(o)    counsel for the appellant had already publicly cross-examined various Commonwealth (AAD) witnesses with a view to establishing fault/responsibility on their part; and

(p)    there was a very strong public interest in ventilation of the contribution, if any, of acts or omissions on the part of the appellant to Captain Wood’s death.

    Captain Wood’s widow had already urged the Coroner to continue with the hearings. The hearings should only be adjourned, counsel for the Commonwealth submitted, if persuasive reasons for doing so had been provided. On examination of the appellant’s submissions, it was contended by counsel for the Commonwealth that no persuasive reasons had been provided.

    There was an important difference between indictable offences and summary offences.

    The questioning that would occur at the resumed inquest was not questioning of the accused. Captain Lomas was an employee of the appellant and can be called to give evidence at the criminal trial and will be required to answer questions at trial unless he is entitled to claim privilege in relation to the answers. Therefore, there was no fundamental altering of the accusatorial process of the kind discussed in X7.

    The concern articulated by the majority in X7 was that the statute pursuant to which the accused was being questioned abrogated the privilege against self-incrimination. Consequently, the accused was placed in a fundamentally altered position when he came to conduct his criminal defence. Those circumstances were not present in this instance because Captain Lomas, who was not an accused, retained the protection of the privilege against self-incrimination and could refuse to answer questions on that basis. Accordingly, proceeding with the inquest did not require the appellant to forgo any of the privileges which the accusatorial system normally afforded it.

    In terms of the hardship which the appellant contended it would suffer, counsel for the Commonwealth submitted that there was no evidence before the Coroner that there was any significant overlap in the timetabling of the criminal case and the resumed inquest hearing.

56    On 11 April 2018, the appellant filed submissions in reply rejecting the contentions put on behalf of the Commonwealth.

57    On 12 April 2019, counsel assisting the inquest notified the parties that the inquest would proceed. The appellant sought reasons and, on 16 April 2018, the Coroner provided reasons dated 12 April 2018. After recounting the submissions and the arguments of the parties, the Coroner said that the ACT Coroners Act did not require that any particular approach be taken in relation to summary criminal prosecutions. The Coroner however accepted that even when s 58 of the Coroners Act did not apply, the fact that summary criminal proceedings were instituted against one of the parties was a relevant consideration in the exercise of the Court’s general discretion in relation to an adjournment of an inquest. The Coroner noted that the remaining witness was Captain Lomas, who was not subject to criminal prosecution, nor had there been any suggestion that he would be. The Coroner continued:

His interests and those of [the appellant] 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 [the appellant’s] defence will be compromised by Mr Lomas giving evidence.

(Emphasis added.)

58    The Coroner observed that in the event that the inquest findings were delivered before the outcome of the criminal prosecution was decided, those findings would not be binding on the Magistrate deciding the criminal prosecution. The Coroner was concerned about the delay and noted that the greatest impact of any delay was on the family of Captain Wood.

59    Captain Lomas was subpoenaed on 12 April 2018 to give evidence in relation to the inquest. Additionally, on 19 April 2018 the proper officer of the appellant was subpoenaed to produce documents.

60    As a result of the ruling, solicitors for the appellant by letter dated 20 April 2018 then sought a direction from the Coroner to the effect that any examination of Captain Lomas would not extend to the matters outlined in the information and summons and statement of facts filed by the Commonwealth in the Comcare prosecution. They notified that in the event such a direction were not made, they were instructed to apply to this Court for judicial review of the decision not to adjourn the inquest until finalisation of the Comcare prosecution.

61    The response from the Coroner was brief and provided through counsel assisting, saying that the Coroner had instructed her as follows:

I do not intend to make such a direction in advance of the hearing. It is impossible to predict what questions may fall foul of the proposed direction yet be otherwise appropriate.

62    There were various other communications and submissions.

63    On 30 April 2018 Griffiths J made an order that “until further order the third respondent [the Coroner’s Court of the Australian Capital Territory] is restrained from requiring Mr David Lomas, Mr William (Bill) English or any other director or employee of the applicant answer any question in the inquest into the death of Captain David Wood CD 9 of 2016 concerning any matter referred to in the Information and Summons or Statement of Facts filed in proceedings in the ACT Magistrates Court CC 44152, 44153 or 44154”: see Helicopter Resources Pty Ltd v Commonwealth of Australia [2018] FCA 595.

THE DECISION AT FIRST INSTANCE

64    After recording the background, the primary judge referred to responsibilities imposed by statute and related regulations under federal aviation law on Captain Lomas (relevantly Appendix 1 to the Civil Aviation Order 82.0, made under s 98(4A) of the Civil Aviation Act 1988 (Cth)).

65    His Honour noted that the appellant contended that Captain Lomas was, in effect, its guiding mind, although it did not contend that he would be giving evidence other than in his personal capacity and did not suggest that Captain Lomas would be authorised to give evidence on behalf of the appellant.

66    Rather, the appellant placed reliance on the terms of s 87(1)(b) of the Evidence Act 2011 (ACT), which will be discussed further below, to establish that admissions made by Captain Lomas would be admissible against the appellant. His Honour thought that this contention was far from clear in circumstances where the appellant had not given Captain Lomas the necessary authority to speak on its behalf on relevant matters. His Honour said that on any view, Captain 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 was at least likely to be an advantage to the Commonwealth in deciding whether and, if so, how to defend the criminal charges against it.

67    In contrast, Captain Lomas had not been charged and did not bring any proceeding to prevent himself from being called to give evidence at the inquest. He was not joined as a party to either the proceeding below or the appeal and, indeed, there was no evidence as to what attitude he took to being compelled to give evidence or doing so voluntarily. His Honour took the view that as a practical matter it was unlikely that the conclusion of the inquest would be left in abeyance pending the completion of the criminal proceedings, especially given that Captain Lomas had already provided a reasonably detailed statement that was before the Coroner. The practical effect of the appellant’s application succeeding may be that Captain Lomas would never give evidence at the inquest.

68    As the primary judge noted, at [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.

69    The primary judge extracted the argument put by the appellant in its written submissions, which was as follows:

(a)    had the factual findings which a rational decision-maker was compelled to make been made, two consequences followed;

(b)    first, admissions made by Captain Lomas at the inquest were likely to be admissible against the appellant in the criminal proceedings;

(c)    second, any examination of Captain Lomas at the inquest would be available to inform the Commonwealth and possibly the CDPP in the criminal proceedings as to the risks of either compelling Captain Lomas to give evidence in those proceedings or of cross-examining Captain Lomas on any particular topic in the criminal proceedings;

(d)    each of those matters was sufficient to establish prejudice to the appellant in the conduct of its defence to the criminal proceedings;

(e)    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;

(f)    following the Coroner’s refusal of an adjournment, the appellant sought a direction that any examination of Captain Lomas should not extend to the matters outlined in the Information and Summons and statement of facts filed in the criminal proceedings;

(g)    the 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; and

(h)    on 19 April 2018, the Coroner’s Court caused to be served a subpoena dated 12 April 2018 for Captain Lomas to attend to give evidence at the inquest.

70    The primary judge was not persuaded as to the penultimate point above, because it could not be yet determined what questions would in fact be permitted or rejected or, indeed, that Captain Lomas would necessarily be required to give evidence at all, even if that might be the most likely outcome if he were called.

71    After setting out the pleadings and the relief sought by the appellant, the primary judge noted (at [35]) that the appellant’s case, in substance, was that the calling of Captain Lomas posed a real risk to the administration of criminal justice and would, therefore, constitute a real danger of contempt of court taking place. The parties had agreed that, consistent with the principle of legality, the Coroner’s powers would not authorise the Coroner to act in a way that would otherwise constitute a contempt, unless her Honour was clearly authorised to do so by the terms of the Coroners Act.

72    The primary judge then proceeded to deal with the first main issue, which was whether requiring Captain Lomas to give evidence at the inquest would constitute an interference with the due administration of criminal justice. After setting out the parties’ conflicting submissions, the primary judge noted (at [65]) that the appellant had acknowledged that with the exception of the Royal Commission into Certain Crown Leaseholds (No 2) [1956] St R Qd 239 (Townley Royal Commission (No 2)), all previous authorities referred to a different circumstance in which it was the examinee, him or herself, who was subject to parallel criminal proceedings. In contrast, Captain Lomas had not been charged. The appellant was not relying on his privilege against self-incrimination and Captain Lomas would not give evidence with the authority of the appellant. Therefore, his evidence would only be in a personal capacity, his Honour said.

73    At issue between the parties was the appellant’s contention that the evidence Captain Lomas could give would 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. His Honour was able to reach a conclusion without resolving that dispute, noting (at [67]) that the appellant’s submission was that the relevant question was whether requiring Captain Lomas to give evidence in the circumstance posed a real risk as opposed to a remote possibility of interference with the system of criminal justice adopting the language of observations made by Gageler and Keane JJ in Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 (Lee No 1).

74    His Honour noted (at [69]) that the appellant’s reliance was on a particular kind of interference said to arise because:

(a)    the Commonwealth would have the advantage of exploring and assessing the evidence Captain 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 was said not to be available under the ordinary rules of criminal procedure; and

(b)    there was a risk that Captain Lomas giving evidence would result in the prosecution being armed with evidence and admissions that were attributable to the appellant in the criminal proceedings.

75    The primary judge then examined the decisions in Lee No 1, Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 (BLF) and Townley Royal Commission (No 2) in considerable detail. Having done so, his Honour concluded (at [112]) that what emerged from the authorities were instances of what may be distinguished as either “direct” or “indirect” interference. His Honour said that although not a perfect characterisation, the first category may 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 was 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. He said it was not a strict dichotomy, given that a case may have elements of both. It was a matter of emphasis in the way in which the interference takes place.

76    The primary judge, by reference to the authorities, studied the position very carefully, observing (at [113]-[119]):

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 [[2014] HCA 20; 253 CLR 455], X7 and R v OC [[2015] NSWCCA 212; 90 NSWLR 134]. 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 [Captain] 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 [Captain] 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 [Captain] 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 [Captain] Lomas is that this is the substance of the pleaded decision that the Coroner has made requiring [Captain] 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 [Captain] 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 [[2008] NSWCCA 252; 72 NSWLR 456] 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 [(1982) 152 CLR 460] 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 [[1993] HCA 74; 178 CLR 477] and Commissioner of Taxation v De Vonk [(1995) 61 FCR 564; 85 A Crim R 410] (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.

77    His Honour concluded, at [120], that in the absence of establishing improper interference, it was difficult to see how there could be any contempt or even some lesser but substantial enough basis for intervention by the Court. Although the categories of cases in which there was an actual real or risk of such interference were not closed, interference must, nonetheless, be demonstrated. The appellant had failed to do so in his Honour’s view. Forensic disadvantage and a generalised sense of unfairness as a result of certain advantages being afforded to the prosecution or to the Commonwealth had not risen to the extent necessary to meet the description of interference.

78    The primary judge then turned to the second issue of whether, notwithstanding that it may cause interference with the due administration of criminal justice, the Coroner had power to require Captain Lomas to give evidence. His Honour declined (at [121]) to express a view on whether the Commonwealth’s concession with respect to this issue was correct, in light of his conclusion that the requisite interference with the criminal proceedings had not been established. The primary judge then rejected various alternative pleaded bases for relief (at [122]–[137]). No serious challenge was made to this part of his Honour’s judgment in the appeal. Finally, the primary judge considered whether, on the assumption his conclusions thus far reached were incorrect, the proceeding instituted by the appellant in this Court was, in any event, premature.

79    The Commonwealth had argued (as it has on appeal) that Captain Lomas may enter the witness box and refuse to adopt his statement and answer any question on the ground that the answers may tend to incriminate him. This was a course he was entitled to take. If he invoked the privilege and further refused to answers questions, even under the protection of a certificate, the Coroner could only direct him to answer questions if the interests of justice so required. The certificate that could be given to Captain Lomas under s 51B of the ACT Coroners Act would not have provided him with protection against the evidence being used if proceedings under the WHS Act were commenced against him other than in an ACT court. The Commonwealth submitted, therefore, that in those circumstances it may well be the end of his evidence and the inquest could proceed to submissions such that the Coroner could proceed to make findings. The inquest should proceed so that the last hurdle could be eliminated to enable its conclusion.

80    A further possibility was that even if Captain Lomas was willing to give evidence voluntarily either with or without the protection of a s 51B certificate, a question would arise as to the scope of the questioning which the Coroner would allow in light of the criminal charges which had been laid. At this point, the Coroner had only indicated that she would not give the general direction in advance sought by the appellant.

81    Reference was also made by the Commonwealth to the Coroner’s power under s 40 of the ACT Coroners Act, under which she had a discretion to direct that a hearing or part of hearing take place in private and to give directions prohibiting or restricting publication or disclosure of the evidence.

82    The Commonwealth submitted, and the primary judge accepted, that this Court was not in a position to determine what the impact on the conduct of the criminal proceedings was likely to be if the inquest resumed and Captain Lomas was called as a witness. The primary judge was not prepared to proceed on the basis that the Coroner would allow matters to proceed in a manner which unfairly or improperly interfered with the appellant’s entitlement to a fair trial.

83    For that further reason, his Honour declined to grant the relief sought by the appellant.

THE GROUNDS OF APPEAL

84    The appellant’s amended grounds of appeal were as follows:

1.    The trial judge erred in failing to find that an essential feature of the accusatorial system of criminal justice in Australia, which is not departed from in the Magistrates Court Act 1930 (ACT) or Evidence Act 2011 (ACT), is that neither the prosecutor of a summary offence nor the co-accused on a summary charge is permitted a process of compulsory pre-trial examination of persons who may then be summonsed to give evidence either as part of the prosecution’s case or the co-accused’s case against the relevant accused.

2.    The trial judge erred in failing to find that there was nothing in the provisions of the Coroners Act 1997 (ACT) that authorised a departure from the essential feature of the accusatorial system identified in Ground 1.

3.    Consequent upon the error in Ground 1, the trial judge erred in failing to find relevant errors on the part of the Coroner who, purportedly in reliance of (sic) sections 34, 35 and 43 of the Coroners Act 1997 (ACT), exercised powers to require the Appellant’s Chief Pilot to give evidence at the inquest which constituted a real risk of interference with the administration of justice in the criminal proceeding commenced by the Commonwealth Director of Public Prosecutions against the Appellant in the following circumstances:

i.    The Appellant and the First Respondent are co-accused on summary charges;

ii.    The Appellant's Chief Pilot was to be called as a witness at the Inquest at the First Respondent’s request because he would be able to ventilate the contribution, if any, of acts or omissions of the Appellant to the death of Captain Wood, which are key issues in the criminal proceedings (at TJ [11], [12] and [19]);

iii.    The Appellant’s Chief Pilot was responsible for the safety standards of the relevant operation of the Appellant and the acts and omissions alleged;

iv.    If the Appellant’s Chief Pilot was required to give evidence at the Inquest, the First Respondent would cross examine him on topics that overlapped with key aspects of the subject matter of the criminal proceedings (at TJ [11], [15], [32] and [42]); and

v.    If the Coroners Act 1997 (ACT) authorised the Coroner to require [Captain] Lomas to give evidence in the circumstances, the Coroner was required to consider the forensic advantages which that course would risk conferring on the prosecution and the Commonwealth, and the concomitant disadvantages that course would risk imposing on the Appellant, in the concurrent criminal proceeding (at TJ [27], [128] and [137]).

4.    The trial judge erred in holding that he would deny relief on discretionary grounds (at TJ [145]), and in particular:

(a)    The trial judge applied the wrong test for the issue of writs of certiorari and prohibition (at TJ [144], [145] and [146]).

(b)    The trial judge’s putative exercise of discretion was on the assumption that the Coroner would, in the exercise of her powers, protect the features of the accusatorial system referred to in Ground 1 when the Coroner had rejected that feature as having any relevance to the exercise of her powers.

(c)    The trial judge’s putative exercise of discretion was on the basis that the Coroners Act 1997 (ACT), properly construed, authorised the Coroner by order to prevent a person charged with a criminal offence from using evidentiary material exculpatory of that person in their defence when no provision of the Coroners Act authorised such a direct interference with the system of criminal justice.

(d)    The trial judge’s putative exercise of discretion was on the basis that the Coroner has yet to decide what questions will be allowed of the Chief Pilot in light of the criminal charges which have been laid against the Appellant when he should have found that the Coroner had reasoned that questions to the Chief Pilot which concerned the subject matter of the criminal charges would be allowed if they were otherwise appropriate (at TJ [141] and [145]).

(e)    The trial judge’s putative exercise of discretion was on the basis that the occasion for the Chief Pilot to claim any privilege against self-incrimination has not yet occurred when he should have found that the occasion for the Chief Pilot to make any such claim, and for the Coroner to decide whether he would be required to give evidence in light of any such claim, was on 1 May 2018 being the day upon which the Chief Pilot had been summonsed to give evidence (at TJ [139] to [141] and [145]).

(f)    The trial judge’s putative exercise of discretion was on the basis that any advantage to the Commonwealth depends on questions being asked of the Chief Pilot in open Court and no direction being given by the Coroner in relation to the use and disclosure of that evidence, when he should have found that there was a risk of interference with the criminal process even if such directions were given (at TJ [143] and [145]).

OTHER STATUTORY PROVISIONS

85    Further key provisions of the ACT Coroners Act are reproduced in the annexure to these reasons.

86    The Legislation Act 2001 (ACT) provides as follows:

170    Privileges against self-incrimination and exposure to civil penalty

(1)    An Act or statutory instrument must be interpreted to preserve the common law privileges against self-incrimination and exposure to the imposition of a civil penalty.

(2)    However, this section does not affect the operation of the Evidence Act 2011.

Note The Evidence Act 2011, s 128 contains provisions that apply if a witness raises these privileges in a proceeding. The privileges have been abolished for bodies corporate (see Evidence Act 2011, s 187).

  (3)    This section is a determinative provision.

Note See s 5 for the meaning of determinative provisions, and s 6 for their displacement.

87    The Evidence Act 2011 (ACT) provides as follows:

187    No privilege against self-incrimination for bodies corporate

(1)    This section applies if, under a territory law or in a proceeding, a body corporate is required to—

(a)    answer a question or give information; or

(b)    produce a document or anything else; or

(c)    do any other act.

(2)    The body corporate is not entitled to fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing the other act might tend to incriminate the body or make the body liable to a penalty.

Note    Fail includes refuse (see Legislation Act, dict, pt 1).

88    There is an equivalent provision in the Evidence Act 1995 (Cth) where, under a law of the Commonwealth or in a proceeding in the Federal Court a body corporate is required to answer a question or give information: see s 187. In our opinion, the provisions of the ACT Evidence Act would apply in the ACT Coroner’s Court by virtue of s 6 of the Australian Antarctic Territory Act.

89    Lastly, the ACT Evidence Act provides:

87    Admissions made with authority

(1)    For the purpose of deciding whether a previous representation made by a person is also taken to be an admission by a party, the court must admit the representation if it is reasonably open to find that—

(a)    when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter in relation to which the representation was made; or

(b)    when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority; or

(c)    the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or 1 or more people including the party.

(2)    For this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove—

(a)    that the person had authority to make statements on behalf of someone else in relation to a matter; or

(b)    that the person was an employee of someone else or had authority otherwise to act for someone else; or

(c)    the scope of the person’s employment or authority.

We consider that this provision would apply rather than the almost identical provision in the Commonwealth Evidence Act since the criminal charges have been brought in the ACT Magistrates Court which is not a federal court as referred to in s 4 of the Commonwealth Evidence Act and as defined in the dictionary to that Act as follows:

federal court means:

(a)    the High Court; or

(b)    any other court created by the Parliament (other than the Supreme Court of a Territory);

and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.

THE ISSUES ON APPEAL

90    As the parties have orally put their contentions, the issues in the appeal are essentially twofold: first, the question of whether or not there has been, or will be, an interference with the due administration of criminal justice amounting to contempt of court or otherwise constituting an impermissible interference with the criminal proceedings and, second, the issue of prematurity. In relation to the first of these issues, the Commonwealth did not submit that the ACT Coroners Act by clear words or necessary implication authorised what would otherwise be a substantial interference with the accusatorial system of criminal justice.

91    We turn to each of those topics.

INTERFERENCE WITH THE DUE ADMINISTRATION OF CRIMINAL JUSTICE AMOUNTING TO CONTEMPT OF COURT

The parties’ submissions on interference

92    The appellant submitted that authority supported the following propositions:

(a)    the system of criminal justice in Australia is accusatorial; this is both a general principle of our legal system and one which generates specific rights and protections in the accused: Lee v The Queen (2014) 253 CLR 455 (Lee No 2) at 467 [32]; X7 at 119-120 [46], [47] 136 [101 ], 142-143 [124), 153 [160]; Lee No 1 at 202 [1], 234 [73], 248-249 [125], 261 [159], 265-266 [175] - [176], 268 [182], 313-314 [318]-[319];

(b)    the principle applies whether the accused is a natural person or a corporation: Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 503 and 517; NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456 at 477 [80]; 490 [152] and [155];

(c)    the principle cannot be reduced to the privilege against self-incrimination: Caltex at 500, 503, 504, 527 and 532; X7 at 136 [102] and 153 [159]; Lee No 1 at 268 [182]; Lee No 2 at 467 [32]; Commissioner of Taxation v de Vonk (1995) 61 FCR 564 at 569C-D, 586D, 589D; Nutricia at 482 [104], [105], 485 [123], [124], 490 [152], [155].;

(d)    although the law denies a corporation the privilege against self-incrimination, that does not deny a corporation the benefit of the principle that the system of criminal justice is accusatorial for all accuseds: Melbourne Steamship Co Limited v Moorehead (1912) 15 CLR 333 at 341, 346; Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 467-468; BLF (1982) 152 CLR 25 at 54.3-5; Hammond v Commonwealth (1982) 152 CLR 188 at 198 and 206; Nutricia at 482 [104] and [105];

(e)    an interference with the accusatorial system of criminal justice is a contempt of court: McGuiness v Attorney-General (Vic) (1940) 63 CLR 73 at 84.8-85.4; BLF at 53.8-54.5, 94.9-95.7, 129.3-129.8, 130.7-132.1, 161.2-161.8; Hammond at 198.7, 202.8, 206.8, 207.5; Lee No 1 at [33], [194]-[197], [320], [321].

(f)    such contempts of court can take the form of an administrative enquiry commenced or continued following the commencement of a criminal proceeding which, as a matter of practical reality (Lee No 1 at 315 [323]), creates a real risk as opposed to a remote possibility that justice according to law in the criminal proceeding would be interfered with by:

(i)    creating the risk that an accused person will be denied the opportunity to decide the course to be adopted at trial in answer to the charge according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial or the strength of the evidence led by the prosecution at the trial: X7 at 131 [85], 135 [99], 136 [101 ], 142 - 143 [124]; Lee No 2 at 467 [32]; Lee No 1 at 229 [54], 268 [182], 270 [188]-[190];

(ii)    exercising the coercive powers to enquire into substantially the same subject matter as the criminal charges (whether or not the examination is of the accused person) parallel to the criminal trial: Huddart Parker Pty Ltd v Moorehead (1909) 8 CLR 330 at 379-380; BLF at 54.5; Hammond at 198.7-199.1, 205.4-205.8, 206.7 and 207.5; Lee No 1 at 274 [204], 292 [264]; Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 at 132G-133C (in a passage not affected by the appeal to the High Court) and Nutricia at 470-472 [52]-[59]; or

(iii)    exercising the coercive powers with the effect that a party to the criminal proceeding obtains an advantage unavailable under rules of criminal procedure: Pioneer Concrete at 467 - 468; Caltex at 559; Nutricia at 470-472 [52]-[59] and 490 [155]; Lee No 1 at 276 [211].

93    The appellant submitted that once the evidence is compelled from Captain Lomas and into the hands of Comcare/the CDPP or of the Commonwealth (AAD), the ways in which it could be used in the criminal trial, treating it as a sequential process, included:

(a)    Restriction of the legitimate forensic choices of the appellant – forcing the appellant to decide whether to maintain its current plea of “not guilty”, what evidence to challenge and what evidence to lead at trial according to the evidence given at the inquest rather than solely the brief presented by the prosecution;

(b)    Pre-trial process – obtaining through compulsory process the sworn deposition of the Chief Pilot when there is no procedure in the criminal process for the compulsory deposition of the accused, its officers or likely witnesses;

(c)    Derivative use by either the CDPP or the Commonwealth (AAD) – using the answers of Captain Lomas as a springboard to seek out further evidence or to prepare to cross-examine him if called as a witness for the appellant;

(d)    At the trial – the CDPP or Commonwealth (AAD) may call Captain Lomas with the benefit of the compulsory deposition. If Captain Lomas gave evidence to the inquest adverse to the position of the appellant, the CDPP would be able to tender a transcript of that deposition against the appellant as part of the prosecution case against the appellant pursuant to s 87(b) of the Evidence Act. If the Commonwealth (AAD) called Captain Lomas in their defence, his evidence given on cross examination by the CDPP (informed as it may be by his deposition to the Coroner) would be admissible against the appellant.

(e)    By the Commonwealth (AAD) – the Commonwealth (AAD) will obtain the benefit of the compulsory deposition of Captain Lomas and may use it to decide whether to maintain its current plea of not guilty, what evidence to challenge, what witnesses to call and what witnesses to ask the CDPP to call (including Captain Lomas).

94    The appellant submitted those uses were likely. The probability that, unless restrained, the Coroner would pass on, or make available, to Comcare and the Commonwealth (AAD) the evidence of Captain Lomas for use in the criminal trial, was further evidenced by the following joint conduct to date: (a) the Coroner initiated regular coordination meetings with Comcare to share investigatory resources, and provided to Comcare all of the inquest product admitted into evidence; and (b) the Commonwealth (AAD) had been paying for the Coroner’s Court’s costs of conducting the inquest.

95    The appellant submitted the Commonwealth (AAD) opposed the adjournment of Captain Lomas’ examination until after the completion of the criminal trial because they wished to cross-examine on the subject matter of the charge, and opposed the relief, including the interlocutory relief, sought in this Court. The inference was that the Commonwealth (AAD) sought to cross examine Captain Lomas now so that his evidence was available so to be used.

96    These matters taken together, the appellant submitted, demonstrated that the coercion was being employed by one Commonwealth officer (the Coroner), at the behest of two other Commonwealth administrative bodies (the Commonwealth (AAD) and Comcare), to compel answers intended to be available for use within an extant criminal trial in either or both of two ways:

(a)    by Comcare and the CDPP – to improve their prospects of obtaining a conviction or greater penalty against the appellant; and/or

(b)    by the Commonwealth (AAD) – to improve its prospects of avoiding its criminal responsibility or reducing its penalty, and conversely shifting liability and penalty to the appellant.

97    In each such case, the appellant submitted, the coercion effected a fundamental alteration of the accusatorial system of criminal justice. To the extent classification was needed, it was a direct and substantial interference with the course of criminal justice, creating real and not remote risks to that process. As such it constituted a contempt of court, specifically a contempt of the process of the ACT Magistrates Court. The appropriate remedy to restrain such a contempt was injunction or prohibition.

98    The appellant submitted that, for the above reasons, the Coroner exceeded its jurisdiction in requiring Captain Lomas to give evidence and to be examined by the Commonwealth (AAD). In the alternative, the appellant submitted the general powers to fix a time and place for a hearing, adjourn a hearing and issue subpoenas conferred on the Coroner’s Court by ss 34, 35, 36 and 43 of the ACT Coroners Act were to be exercised conformably with the accusatorial system of criminal justice. This required that weight be given, in the exercise of those powers, to the risks that requiring Captain Lomas to give evidence would confer an advantage upon the Commonwealth (AAD) or impose a disadvantage upon the appellant in the criminal proceeding, which were not provided for by the rules of criminal procedure. The risk of prejudice to an accused in the conduct of his, her or its criminal trial was, at a minimum, a necessary relevant consideration. Within the statutory framework, it must be given fundamental weight in the consideration process.

99    The appellant submitted that, in the context of its understanding that the sole remaining witness was Captain Lomas, it had submitted before the Coroner that the inquest should be adjourned because of the effect that the examination of Captain Lomas would have upon the appellant’s position in the extant criminal proceedings. The Coroner, in the face of the “unhelpful” Commonwealth (AAD) submissions, refused the adjournment. She gave no weight to the alteration that would thereby be effected to the appellant’s and the Commonwealth’s (AAD’s) position in the criminal trial.

100    The appellant submitted the primary judge erred in finding that the generally expressed powers of the Coroner’s Court permitted the Coroner to disregard the effect of her exercise of those powers on the positions of the appellant and the Commonwealth (AAD) in the criminal proceeding.

101    The appellant’s submissions were crystallised in its written submissions in reply. The appellant submitted the issue was an objective one: what did the accusatorial system of criminal justice require; did the parallel administrative inquiry interfere with such requirements; and did such interference rise to the level of a contempt? Whether any of the three arms of the Commonwealth executive engaged in this matter intended or sought to bring about an interference with the accusatorial system was irrelevant to the relief sought.

102    The appellant submitted that the primary judge had made the critical findings of primary fact which the appellant needed:

(a)    the Commonwealth (AAD) intended to use the compulsory examination of Captain Lomas as the occasion to question him on matters which went to the heart of the criminal charges which had been laid against the appellant and the Commonwealth (AAD);

(b)    the Coroner, despite that knowledge, and despite the appellant’s request, refused to make a direction preventing such questioning by the Commonwealth (AAD).

103    It necessarily followed, the appellant submitted, that there was a real likelihood that Captain Lomas would, under the compulsion placed on him, give evidence on the matters the subject of the charge.

104    Thus arose the two central questions of law:

(1)    does the accusatorial system of criminal justice know of a process of compulsory pre-trial depositions of the key officers or agents of corporate accused (or indeed more generally of any accused – individual, partnership, trust or association)?

(2)    if not, may a parallel administrative enquiry to be conducted by such compulsory deposition escape a finding of contempt, particularly where three arms of a polity are involved: one as the inquisitor; another as the prosecutor; and a third, which urged and will take part in the inquisition, was a co-accused in the criminal trial?

105    The appellant relied on Caltex at 502-503, 517 and 550-551, contending that in denying the privilege against self-incrimination to corporations, each of the majority judges did so in terms that affirmed that corporations still had the benefit of the accusatorial system. The appellant also relied on Nutricia, especially at [80], [152] and [155].

106    The appellant characterised the Commonwealth’s argument as being that because the officers and agents of a corporate accused could be compelled to give evidence in a criminal prosecution against the accused, and the corporation could not prevent them doing so under the privilege, therefore it was impossible to identify any remaining useful content in the accusatorial system for a corporation once there was a risk of its officers and agents being summonsed in the criminal trial.

107    The appellant submitted that the system of criminal justice knew of no process for the compulsory pre-trial deposition of the officers or agents of an accused, whomever the accused may be. Such a compulsory pre-trial deposition alters the accusatorial system at least two ways:

(a)    it inevitably disadvantages the accused because its decisions how to plead or maintain a plea and how to defend the matter have to be made not just against the strength of the prosecution’s case but also against the answers extracted from the officer or agent: see X7 at [101]; and

(b)    where there is any prospect that the answers will get to the prosecution – or indeed a co-accused – it provides them with an advantage not otherwise available under the system of criminal justice in prosecuting or defending the case.

108    The appellant submitted there was considerable support, apart from cases in the criminal context dealing with corporate accuseds, such as Caltex, Nutricia and Melbourne Steamship, for the more general proposition that the adversarial system of justice – civil or criminal – knows no process of pre-trial depositions, meaning that defendants, corporate or otherwise, can resist orders for such examinations: in the civil context, for corporations see Jones v Treasury Wine Estates Ltd [2016] FCAFC 59 and Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2) [2012] VSC 495 at [8] and [9] and for non­corporations see Sentry Corporation v Peat Marwick Mitchell & Co (1990) 24 FCR 463 at 493, Armstrong v Armstrong [1892] P 98.

109    In that sense, the appellant submitted, the protection which the corporate accused had within the accusatorial criminal trial derived from broader considerations of the adversarial system of justice. Once that step was taken, it remained only to identify the likely effect of the course being proposed by the Coroner, at the urging of the Commonwealth (AAD). Once Captain Lomas was compelled to answer any question on the subject matter of the criminal charge, the position of the appellant would be irrevocably altered, irrespective of any question of subsequent publication or use of the answers, and there would be at least some uses or publications conferring advantages that it would be impossible to prevent. The most obvious example was the position of the Commonwealth (AAD). Counsel for the Commonwealth (AAD), asking the questions on the subject of the criminal trial and hearing the answers, could never thereafter ‘forget’ the information obtained. Nor could the Commonwealth point to any provision of the ACT Coroners Act which would authorise an order preventing use. With the CDPP, the position may or may not be different. It was not clear that s 40 of the ACT Coroners Act would justify an order restraining any communication of the evidence to the CDPP. It was not clear what was meant to happen when the Coroner came to write and publish a report which may well refer to the evidence of Captain Lomas.

110    The appellant submitted it was significant that, unlike most cases in recent years in the X7 line where the prosecution went to lengths to resist a finding of contempt by showing procedures were in place to prevent transmission of compelled evidence to the prosecution, no such step was pointed to in the evidence here. It followed that the Commonwealth must see nothing wrong in the compulsion of evidence out of Captain Lomas. It sought to defend the primary judge’s view that advantages were likely to be obtained by the CDPP and the Commonwealth (AAD) which were not available under the accusatorial system but that this was permissible. In short, the Commonwealth offered the Court no legal or other assurance that if the appeal was dismissed and Captain Lomas compelled to speak on the subject matters of the charge, those answers would not be available for use by it in its dual capacities in the criminal trial. That risk and threat to the criminal trial required the injunction.

111    In oral submissions, the appellant emphasised that there was no suggestion at this stage of any procedure to insulate the evidentiary material given in the inquest from Comcare, or ultimately the CDPP, for the reason that Comcare was an active participant in the coronial inquest and, absent something special, it would hear all this evidence as well.

112    The appellant submitted that there were really two key issues in the accusatorial principle. One was about corporations, but the other was about pre-trial depositions. The question was whether the system of criminal justice in Australia knows of a process of pre-trial depositions of persons under charge or their key witnesses: was there such a process internal to the system of criminal justice? The appellant submitted the answer to that question was a resounding no.

113    The appellant submitted there were three stages in the analysis, the appellant, like any accused, being entitled to enter a plea of guilty or not guilty as against the strength of the brief of evidence presented. First, the present process had fundamentally departed from the criminal justice system in that the objective purpose of the compulsion would likely have been to commit Captain Lomas to a version of events on the charge, and when the appellant came to plead it could only do so, not just against the strength of the brief of evidence, but also against the answers that its responsible officer had given. The appellant’s defence was compromised at this stage. Second, once Captain Lomas was committed to a version of events, everything the appellant did defending the criminal trial must take into account that version of events. X7 showed that in each step of the subsequent defence an accused was entitled to put the prosecution to proof, and to test its evidence, and then to make decisions to call any evidence solely against that background, and the accused was not required to make any other answer other than the plea of not guilty. Third, counsel had found no case where one co-accused had been entitled under any rule of court or practice to use compulsion within the criminal trial to examine the key witnesses of the other accused. The appellant was prejudiced in its defence because its position was being limited by the actions of another arm of the Commonwealth, namely its co-accused, obtaining the compulsory answers of the appellant’s witnesses. The primary judge recognised, at [42] and [44], that within the criminal trial there was no process of internal pre-trial depositions of the witnesses of the accused.

114    The appellant submitted that X7, particularly at [85], [97], [101]-[102], [104], [116-118] and [124], and cases following up to Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; 361 ALR 23 at [75]-[79] and [95], had made clear that one aspect of inconsistency with the accusatorial system was the restriction upon an accused’s legitimate defence once the accused, or the appellant would say the accused’s managing director, had been compelled to speak on the subject matter of the charge, and that was true irrespective of any question of use. The appellant submitted that the Court should view the statements in X7, although made in the context of an accused being compelled to speak directly, as equally applicable if the accused was speaking via the accused’s officer.

115    A second form of prejudice arose from use, which was where the material got into the hands of either the prosecution or, in this case quite extraordinarily, the co-accused, and that raised a series of further interferences with the accusatorial principle and a further basis for contempt.

116    The appellant submitted that the trend in the High Court was to treat the principle of contempt, by getting advantages or causing disadvantages contrary to the rules of the process, as an aspect of the accusatorial principle. This reflected the true richness of the accusatorial principle.

117    There was plenty of richness in the concept of the fair trial which underpinned why this type of conduct was regarded as a contempt. The appellant referred to the judgment of Kiefel J in Lee No 1 at [188]-[190] and [210]-[213], especially at [211], where her Honour said that some of the key requirements in play were sometimes described as part of what was necessary for a fair trial, and sometimes were described as part of the accusatorial process. Similarly, in speaking about the concept of the prosecution obtaining advantages not otherwise available, her Honour was discussing, conceptually, which framework to put this under.

118    The appellant submitted that Lee No 1 did not stand for the proposition that it could all be left to the judicial officer. It stood for the proposition that s 31D of the Criminal Assets Recovery Act 1990 (NSW) sufficiently evinced an intention to effect what was otherwise a fundamental alteration to the system of criminal justice.

119    The appellant submitted there was a deeper point within the adversarial system that, absent special statutory power, the notion of pre-trial depositions to extract evidence from the witnesses of the other side was contrary to the Australian system of justice, referring to Armstrong, Sentry Corporation at 492-493, Jones and Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 145.

120    The Commonwealth submitted that the decision of the primary judge was correct and turned on the rejection of two submissions made by the appellant.

121    First, the primary judge rejected the submission that the conduct of an inquiry parallel to a person’s criminal prosecution would ordinarily constitute a contempt of court even in circumstances where there is no proposal to examine the accused. It was central to the reasoning of the primary judge that there was no authority or any discernible principle to support a finding of contempt on the basis urged by the appellant outside the class of cases where the person to be questioned was the same person charged with a criminal offence.

122    Second, the primary judge rejected the submission that to advantage the prosecution (or a party) at trial by conduct that occurred after charges were laid, in a way for which the criminal justice system did not otherwise provide, amounts to an improper interference with the administration of justice. The primary judge drew a distinction between a matter which may affect adversely an interest of a party in civil or criminal proceedings, and something that rose to the level of an improper interference in such proceedings. The primary judge concluded that the appellant had only pointed to forensic disadvantage and a generalised sense of unfairness, but not of a nature or extent that met the description of improper interference.

123    The Commonwealth submitted that the appellant’s submissions involved an attempt to expand the concepts of what constituted the accusatorial process, and what was necessary to protect that process, to every aspect of a criminal investigation and trial beyond its application to the person accused. The concepts did not bear the expansive content which the appellant claimed. An expansive but accurate description of the protective bases of the accusatorial system can be found in the judgment of Hayne and Bell JJ in X7 at [101]:

…the whole of the process for the investigation, prosecution and trial of an indictable Commonwealth offence is accusatorial. It is accusatorial in the sense that an accused person is not called on to make any answer to an allegation of wrong-doing, or to any charge that is laid, until the prosecuting authorities have made available to the accused particulars of the evidence on which it is proposed to rely in proof of the accusation that is made. And even after that information has been provided, the accused person need say or do nothing more than enter a plea of guilty or not guilty to the charge. If the accused person chooses to plead not guilty at trial, he or she is entitled to put the prosecution to proof of the charge and, as part of that process, to test the strength of the evidence which the prosecution adduces at trial. The only relevant limit on the accused person’s testing of the strength of the prosecution’s case is provided by the accused person’s instructions to his or her lawyer.

124    The Commonwealth submitted the hallmark of the accusatorial system was that the accused was not required to answer any questions of prosecuting authorities from the investigation phase through to the end of the trial. Alteration of the accusatorial system of justice necessarily involved an alteration of the rights of the accused. In the present matter, the only person subject to compulsion was Captain Lomas (and in relation to such compulsion he was entitled to claim the privilege against self-incrimination). Captain Lomas was not accused of anything. He was a compellable witness in any case brought against the appellant: Caltex at 504. The ability of the Coroner to require Captain Lomas to attend for questioning did not require any kind of statutory authorisation to permit an alteration of the accusatorial process. It depended on two things. First was the exercise of powers to continue the inquest notwithstanding the laying of summary charges – the Coroner’s power to do so arose from the terms of the ACT Coroners Act. Second was the operation of the general law in relation to the questioning of officers or employees of companies. It had been acknowledged at least since the decision of Caltex that officers of a corporation can be compelled to give incriminating evidence against the corporation unless they were able to also claim the privilege personally. In exercising her powers to compel Captain Lomas to attend the Coroner was not effecting an alteration of the protective features of the accusatorial process.

125    The Commonwealth also submitted that there was no basis for assuming that if Captain Lomas was required to attend and answer questions that evidence would end up in the hands of the CDPP, let alone in a form which would permit the Commonwealth (AAD) to use the material in a criminal trial.

126    The Commonwealth submitted that contrary to the appellant’s submissions, the inference was not open on the evidence that the Commonwealth (AAD) sought to cross-examine Captain Lomas now so that his evidence would be available to be used in the criminal trial. The Commonwealth had made submissions in relation to why it opposed the adjournment and wanted the inquest to proceed as soon as possible. The concern then expressed was that if the matter was adjourned pending the resolution of any criminal charges it was likely to add to the cost of proceedings, may diminish the quality and accuracy of any findings made, diminish the ability of the Coroner to resolve inconsistencies in evidence and was contrary to the wishes of Captain Wood’s widow. Those submissions adequately explained why the Commonwealth had taken the position it had.

127    The Commonwealth submitted that the principle explained in X7 was directed to evidence taken on the subject matter of a charge which was taken in private and which could not be used in the criminal trial but nonetheless effected an alteration to the accusatorial process. It did so because the accused’s freedom was restricted by the answers given on oath: X7 at [124]. The private testimony of a non-accused could not have the same effect.

128    The Commonwealth submitted that the appellant mistakenly suggested that the primary judge gave no consideration to the interference constituted by conferring an advantage on the Commonwealth (AAD) or the prosecution. The primary judge expressly considered this aspect of the appellant’s case at [120]. His Honour correctly concluded that the identified advantages were not sufficient to amount to an improper interference, the Commonwealth submitted.

129    In relation to ground 3, the Commonwealth submitted that the primary judge, at [125] and [128], did not find that the generally expressed powers of the Coroner’s Court permitted the Coroner to disregard the effect of her exercise of those powers on the positions of the appellant and the Commonwealth (AAD) in the criminal proceedings. The Commonwealth submitted that at [125] the primary judge found that the appellant had not made out a specifically pleaded constraint on the exercise of those powers.

130    In relation to the finding of the primary judge at [128], the Commonwealth submitted that the primary judge rejected the proposition that a discretionary reason for the exercise of the Coroner's power (which the evidence shows her Honour considered and formed a view about) constituted a mandatory relevant consideration as pleaded.

131    In any event, the Commonwealth submitted, given that it was now accepted by all parties that the appellant over-reached in asking for an adjournment, it was in the context of a rejection of the adjournment application that the Coroner made the alleged error, and that adjournment decision was no longer an operative decision in any sense. If any error was disclosed in his Honour’s reasons, it did not go to the only live issue in the proceedings, which was whether a writ in the nature of prohibition should issue.

132    In oral submissions, the Commonwealth accepted that accusatorial principles still do apply to companies, but the consequences of the other findings in Caltex meant that those accusatorial principles, in their application to companies, were very significantly diminished. The passages at 535 and 504 in Caltex related to the status of the evidence given by employees and officers of a company. The net effect of Caltex, the Commonwealth submitted, was to reduce, to close to nothingness, the accusatory principle as it applies to companies.

133    Nutricia was accepted as correct. For example, a company might be faced with a compulsory notice or interrogatory, charges might then be laid, and then at that point, notwithstanding that the company did not enjoy the privilege against self-incrimination, it could claim that to respond to the notice or answer the interrogatories would be contrary to the principles of the accusatory process. The Commonwealth submitted that the critical element of the accusatorial process was that the person with whom you were dealing was the accused. Unlike the notice which the company has to answer, a notice directed to an employee is directed to the employee.

134    The Commonwealth submitted that the extant issue was not the accusatorial principle, which had as its fundamental principle that it is for the prosecution to prove the guilt of the accused and the companion rule that an accused person cannot be required to testify in their own prosecution. Those principles were not engaged. The questioning of Captain Lomas was not interfering with the same kind of rights as having the accused questioned. The prejudice described in X7 at [124], repeated almost verbatim with slightly more elaboration in Strickland at [75]–[76], only applied if the person giving the evidence was also the accused. Here there was no assistance being provided by the appellant company. Further, as the primary judge accepted, this Court was not yet at a point where it was clear that the Coroner was going to act in excess of her jurisdiction. Certainly not as a matter of power. And the appellant had not been able to establish that there was real practical prejudice to the conduct of the criminal trial at the point in time at which it sought relief. Once one gets past the accusatorial principle and starts looking at whether or not the appellant had established a real risk as opposed to a remote possibility of interference, it had not got there.

135    The Commonwealth submitted that under s 40 of the ACT Coroners Act, if the matter went back to the Coroner, she could take steps to safeguard the conduct of the criminal trial by ensuring that the evidence was heard without Comcare or the CDPP being present. The Coroner could also ensure that those who are present did not disclose the information that they obtained for the benefit of those conducting the Commonwealth’s (AAD’s) defence in the criminal trial. The Court should accept, as did the primary judge, that the Coroner would act in a way which was appropriate in protecting the integrity of the criminal justice process. That was the way in which the Court approached the matter in Lee No 1. The Coroner had not been asked to deal with the question of protective orders.

136    However, the Commonwealth accepted, that was not the end of the matter because, as a separate principle, if conduct conferred an advantage or detriment not provided for by the rules of court then that could be an improper interference with the criminal justice process. That was a recognised form of contempt. The appellant had to establish a real risk as opposed to a remote possibility of interference and, the Commonwealth submitted, the appellant had not done so. The Commonwealth referred to Nutricia at [143]–[145] for the proposition that it could not be said that any advantage was sufficient to establish a contempt. The Court should not be satisfied that the effect of what the Coroner does may create an interference with the criminal proceedings. Mere overlap in subject-matters was not enough in circumstances where there was supervision by a judicial officer.

Consideration in relation to interference

137    In Caltex, a corporation was charged in the Land and Environment Court with certain offences, a number of them being under the Clean Waters Act 1970 (NSW). Several weeks before the charges were to be heard, Caltex was served with two notices requiring the production of identical documents. The first notice was pursuant to s 29(2)(a) of the Clean Waters Act which empowered an authorised officer to require the occupier of certain premises to produce to that authorised officer documents relating to the discharge from the premises of pollutants into the waters. The second notice was a notice to produce in accordance with the rules of the Land and Environment Court. The sole purpose of the notices was to obtain evidence and information for use against Caltex in the prosecutions.

138    The proceedings did not involve the federal separation of powers. The majority held that s 29(2)(a) could be used to obtain evidence against the corporation even though the notice had been issued after the commencement of the prosecutions and for the purpose of obtaining evidence and information for use in those prosecutions. The dissenting judges, Deane, Dawson and Gaudron JJ, would have upheld the privilege.

139    Mason CJ and Toohey J, in a joint judgment, at 503 reasoned that it did not follow from the fact the privilege against self-incrimination protected individuals from being compelled to produce incriminating books and documents that it was an essential element in the accusatorial system of justice, or that its unavailability in this respect in relation to corporations would compromise that system. Their Honours said that the fundamental principle that the onus of proof beyond reasonable doubt rested on the Crown would remain unimpaired, as would the companion rule that an accused person could not be required to testify to the commission of the offence charged. In so saying, their Honours were addressing a justification of Gleeson CJ, with whom Mahoney JA and McLelland J agreed, in the New South Wales Court of Criminal Appeal in Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 at 127 for the privilege against self-incrimination applying to corporations. Gleeson CJ had said that the privilege ought to be seen as serving three main purposes: first, it was an aspect of individual privacy and dignity; second, it assisted to hold a proper balance between the powers of the State and the rights and interests of citizens, including “corporate citizens”. The third purpose was expressed as follows:

The third purpose to which I refer is that the privilege is a significant element maintaining the integrity of our accusatorial system of criminal justice, which obliges the Crown to make out a case before an accused must answer. It is closely related to, although not co-extensive with, the right to silence: cf Petty v The Queen (1991) 65 ALJR 625; 102 ALR 129. It constitutes a part of what we accept as “due process”: cf Adler v District Court of New South Wales (1990) 19 NSWLR 317 at 345-353 per Priestley JA. In those two last respects the rationale of the privilege is just as applicable to corporations as to individual persons.

140    Mason CJ and Toohey J also said, at 504, that in the case of corporations, their books and documents constituted the best evidence of their business transactions and activities. It made no sense at all to make the privilege available to a corporation in respect of those books and documents when officers of the corporation were bound to testify against the corporation unless they were able to claim the privilege personally. Their Honours said: “Oral evidence given by an officer of a corporation is that of the witness, not that of the corporation.”

141    Brennan J said, at 512-513, that the particular immunity which the privilege was designed to confer was an immunity from an obligation to testify as to one’s own guilt. That was an immunity that was irrelevant to a corporation, for a corporation could not be a witness. A corporation could be obliged in court proceedings to give discovery and to produce documents but the obligation to swear or affirm an affidavit or to produce documents was performed on behalf of the corporation by an officer or agent: the obligation was not – indeed, could not be – performed by the corporation personally.

142    McHugh J, at 550-552, considered what his Honour referred to as the most powerful reason for allowing a corporation to claim the privilege, that reason being that the privilege against self-incrimination was a natural, although not a necessary, consequence of the adversary system. His Honour said that in the end, the case for extending the privilege to a corporation must rest mainly, if not wholly, on the effect on the adversary system if the privilege was not available to a corporation. Denial of the privilege against self-incrimination to a corporation would undermine its position in the adversary system, his Honour said. At 556, having said that it was difficult to see how the administration of justice, even under the adversary system of criminal justice, could be advanced by allowing a corporation to refuse to produce documents on subpoena simply because the documents tended to incriminate the corporation, McHugh J said that the public interest in the production of relevant evidence in civil and criminal proceedings outweighed the detriments associated with refusing to allow corporations to claim the privilege. His Honour held, therefore, the corporation could not claim the privilege against self-incrimination.

143    In our opinion, subject to the question of any operation of s 87(1)(b) of the Evidence Act, Caltex stands against the proposition that, of itself, the accusatorial nature of a criminal trial of a corporation means that an officer of the corporation may not be required to answer questions which tend to incriminate the corporation.

144    In Nutricia, criminal proceedings had already been instituted by the NSW Food Authority against the respondent company alleging contraventions of the Food Act 2003 (NSW). Pursuant to s 37 of that Act, the Food Authority issued six notices on the respondent to provide information and documents. Each notice contained a detailed set of questions, characterised as interrogatories. The primary judge had set aside two of the six notices but refused to set aside the other four. The basis of the primary judge’s decision was that the four notices not set aside expressly or impliedly stated that any material produced would not be used in relation to the existing charges. On a case stated to the New South Wales Court of Criminal Appeal, Spigelman CJ, with whom Hidden and Latham JJ agreed, answered “No” to each of the seven questions asking whether the primary judge erred in law in various respects.

145    At [136], Spigelman CJ, for the Court, said it was sufficient for present purposes to conclude that the administration of detailed interrogatories for the purpose of proving elements of an offence the subject of extant charges was such a significant impingement upon the integrity of the courts that Parliament should not be understood to intend that a statutory power could be so deployed in the absence of a clear statement to that effect.

146    At [152], Spigelman CJ said:

The self-incrimination immunity should now be regarded as one manifestation of a broader principle and the broader principle may have other manifestations which are available to corporations. The process of historical development was identified in the dissenting judgment of Deane J, Dawson J and Gaudron J in Environment Protection Authority v Caltex Refining Co, in a manner which is not affected by their Honour’s conclusion that the self-incrimination immunity is available to a corporation.

Spigelman CJ cited that dissenting judgment at 527 and 534-535.

147    At [155], Spigelman CJ said

The accusatory system is, in my opinion, a fundamental element of our traditional method of determining criminal guilt. A public authority which formally alleges criminal conduct by a person must prove it. As recognised in the reasons of Mason CJ and Toohey J [at 503 and 507-508] and the observations of Deane J, Dawson J and Gaudron J [at 527], the accusatory system is not co-extensive with the privilege against self-incrimination. It is derived, as many other aspects of our criminal procedure are derived, from the recognition of the imbalance of power between the State and its citizens. That imbalance extends to corporations.

148    At [156], Spigelman CJ said that the reasoning of Mason CJ and Toohey J in Caltex at 503-504 was concerned with the difficulties which arose for the proof of breach of regulatory statutes and was directed to production of documents, not to the compelling of answers to questions. As their Honours and Brennan J indicated at 502-503 and 516-517, the latter raised very different considerations. It constituted a qualitatively more significant impingement upon the accusatory system. Brennan J also emphasised the significance of the actual commencement of proceedings. Also noted by Spigelman CJ was the reference to the “fundamental principle … that an accused cannot be required to testify to the commission of the offence charged” in the reasons of Mason CJ and Toohey J at 503 and the confinement of their qualification of the accusatory system to “the production of documents” at 503-504.

149    At [160]-[161], Spigelman CJ said:

…The formal presentation of a charge is a critical step in the criminal justice process. As I have indicated above, a prosecuting authority must be taken to assert that, at that point, it is able to establish guilt beyond reasonable doubt. From that point the accusatory nature of our criminal process should be given full effect and, in that regard, would lead to the same conclusion as the application of the doctrine of contempt.

Accordingly, Parliament should be taken not to have intended to impinge upon the accusatory nature of our system of criminal justice, after charges are lain, in the absence of express words or necessary intendment. However, the legislative scheme under consideration creates a regulatory system where such an intention can be inferred with respect to pre-charge investigation.

150    It may therefore be accepted that rights involved in the accusatorial system of criminal justice are not limited to the right against self-incrimination and that, so far as a corporation is concerned, it is one thing to require the corporation to produce to the prosecuting authority existing documents but it would be another thing to compel the corporation to answer questions. We would add that those questions would need to be answered by the proper officer of the corporation. Nevertheless, an issue remains whether requiring Captain Lomas to answer questions at the inquest would be compelling the appellant corporation to answer questions.

151    It is now appropriate to consider later High Court authority of X7, Lee v No 1, Lee No 2 and Strickland.

152    X7 concerned an individual under questioning by the Australian Crime Commission (ACC). The setting therefore attracted federal separation of powers concepts. The individual had been charged with three indictable Commonwealth offences. The High Court held, by a 3-2 majority, that the Australian Crime Commission Act 2002 (Cth) (ACC Act) did not authorise an examiner appointed under s 46B(1) of the ACC Act to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence. French CJ and Crennan J said, at [6], that the expression “subject matter of the offence” in the relevant question in the stated case was treated as including examination of the circumstances of the offence with which a person had been charged, which questions could establish that the person had committed a crime, or disclose defences upon which the person might rely at trial. The ACC Act provided that if the person being examined claimed that the answer to a question asked, or the production of a document or thing sought, might tend to incriminate that person, or make him or her liable to a penalty, subject to some exceptions, the answer given, or the document or thing produced, was not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty.

153    The main majority judgment was given by Hayne and Bell JJ. Their Honours held, at [70], that the relevant provisions of the ACC Act should not be construed as authorising the compulsory examination of a person charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge. Their Honours continued, at [70]-[71]:

Permitting the Executive to ask, and requiring an accused person to answer, questions about the subject matter of a pending charge would alter the process of criminal justice to a marked degree, whether or not the answers given by the accused are admissible at trial or kept secret from those investigating or prosecuting the pending charge.

Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.

(Original emphasis.)

154    The observation which was critical to the question of statutory construction was made at [85]:

… permitting the Executive to ask, and compelling answers to, questions about the subject matter of a pending charge (regardless of what use may be made of those answers at the trial of an accused person) fundamentally alters the process of criminal justice.

155    As to the secrecy of the compulsory examination, their Honours said, at [124]:

Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.

(Original emphasis.)

156    Kiefel J agreed, at [162], with the reasons of Hayne and Bell JJ. Her Honour gave short concurring reasons.

157    X7 concerned an individual and said nothing directly about the position of a corporation. There is no reason to doubt that the approach of the majority would apply to a corporation.

158    Lee No 1 concerned s 31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW) (CAR Act) which empowered the Supreme Court to make an order for the examination on oath of the affected person or another person before the Court concerning the affairs of the affected person, including the nature and location of any property in which that person had an interest. Affected person was defined to include a person proposed to be subject to certain kinds of confiscation orders. Two persons were charged with various criminal offences and after they were charged the Crime Commission applied to have them examined before the court pursuant to s 31D(1)(a) of the CAR Act.

159    Section 13A(1) of the CAR Act provided that a person being examined was not excused from answering any question or from producing any document on the ground that the answer or production might incriminate, or tend to incriminate, the person or make the person liable to forfeiture or penalty.

160    The case did not concern any issue of federal separation of powers.

161    X7 was distinguished by the majority, comprising French CJ, Crennan, Gageler and Keane JJ. Hayne, Kiefel and Bell JJ dissenting.

162    French CJ held, at [56], that as a matter of necessary intendment the power to order an examination would extend to orders of the kind made by the Court of Appeal in that case. His Honour held, at [55], that one of the determinative matters supporting this conclusion was that the objects of the CAR Act expressly contemplated its application to persons facing criminal charges. It was also significant that the power to make an order for an examination was conferred on the Supreme Court, as was the conferring of the examination power itself on the Court.

163    Crennan J held, at [144], that the relevant provisions of the CAR Act clearly and unambiguously showed that the privilege against self-incrimination was abrogated, irrespective of whether or not an examinee had been charged with a criminal offence.

164    Gageler and Keane JJ observed, at [333], that the terms in which the power was conferred by s 31D(1)(a) of the CAR Act drew no distinction between circumstances where criminal proceedings had and had not been commenced and held that this was deliberate. It was an aspect of a carefully integrated and elaborate legislative design. At [335], their Honours said:

The power conferred by s 31D(1)(a) does not authorise the making or implementation of an examination order where to do so would give rise to a real risk of interference with the administration of justice including by interfering with the right of the person to be examined (or any other person) to a fair trial. For reasons already given, however, the making of such an order does not give rise to a real risk of interference with the administration of justice by reason only that the subject matter of the examination will overlap with the subject matter of criminal proceedings that have commenced but that have not been completed.

165    Lee No 2 concerned the publication to members of the New South Wales Police Force and to officers of the Director of Public Prosecutions of evidence given by the appellants, individuals, before the New South Wales Crime Commission. In a unanimous judgment, the High Court held that the trial of the appellants on various drug and firearms offences miscarried as a result of the DPP’s possession and possible use of that evidence.

166    At [32]-[33], the Court said:

Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that “no attempt to whittle it down can be entertained” albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.

(Footnotes omitted.)

167    The Court said, at [34]:

The purpose of s 13(9) of the NSWCC Act was to protect the fair trial of a person who might be charged with offences. It supported the maintenance of the system of criminal justice referred to in X7 and the trial for which that system provides, in which the prosecution has a defined role and the accused does not. The protective purpose of s 13(9) would usually require that the Commission quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. It would require the Commission to make a direction having that effect and to maintain the prohibition in the face of requests for access to the evidence. That purpose was not met in the present case, with the consequence that the appellants’ trial differed in a fundamental respect from that which our criminal justice system seeks to provide.

168    In our opinion, the chief importance of this judgment for present purposes is the unanimous restatement of principle at [32]-[33], which we have set out at [166] above.

169    In Strickland, Kiefel CJ, Bell, Keane, Nettle and Edelman JJ (Gageler and Gordon JJ, dissenting) allowed an appeal from the Court of Appeal of the Supreme Court of Victoria which had allowed appeals from orders of the primary judge permanently staying prosecutions of the appellants for offences contrary to the Criminal Code (Cth) and, in some cases, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic). The appellants were compulsorily examined by the ACC in 2010 prior to being charged with those offences. The principal issue in each appeal was whether the ACC acted so much in disregard of the requirements of Div 2 of Pt II of the ACC Act, and therefore in unlawful violation of each appellant’s common law right to silence, that the prosecutions should be stayed.

170    At [74], the plurality, Kiefel CJ, Bell, Nettle JJ, held that since the examinations of the appellants were not held for the purposes of a special ACC investigation, there being no ACC investigation on foot, but rather for an extraneous, unlawful purpose of assisting the AFP to compel the appellants to give answers to questions about offences of which they were suspected and had declined to be interviewed, the examinations were unlawful. It was next held, at [75], that the prosecution derived the forensic advantage of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial. The appellants suffered a corresponding forensic disadvantage. Their Honours said, at [76]:

As Hayne and Bell JJ observed in X7 (No 1) in relation to an unlawful compulsory examination conducted post charge, even if the answers given at a compulsory examination are kept secret, and so cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers after being charged fundamentally alters the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial and adversarial trial in the courtroom. The examinee can no longer decide the course which he or she should adopt at trial according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial …

(Footnotes and quotation omitted.)

171    The crucial issue in this appeal is whether the requirement by the Coroner that Captain Lomas give evidence at the inquest, at a time before the appellant’s criminal trial on its plea of not guilty has concluded, entitles it to any relief.

172    If Captain Lomas were to give evidence in terms of his earlier statement, that evidence will be capable of being tendered by the prosecution against the appellant as an admission by it by force of s 87(1)(b) of the Evidence Act. Moreover, if Captain Lomas is compelled to go into the witness box at the inquest, he will reveal either what his evidence will be, and so will commit himself to a version of events from which he could not credibly depart at the trial, or that he is not presently prepared to give evidence because his answers may tend to incriminate him by reason of the potential that he might be charged as an accessory to the appellant’s commission of the offences alleged. In the latter case, it remains possible that the Coroner might require him to answer questions because her Honour might determine under s 51B(4) of the Coroners Act that his evidence would not tend to prove that he had committed an offence.

173    Three important principles of our system of criminal justice bear on whether Captain Lomas can, or should, be compelled to give evidence at the inquest. The principles relevant here, as discussed above, are the following: first, before being charged, the appellant, as a corporation, had no right or privilege to refuse to produce documents or other physical evidence on the ground that to do so might tend to incriminate it (of course, as an artificial person, it could not give any oral evidence); secondly, the use of compulsory procedures under a law in a way that is unjustifiably oppressive on a party to a court proceeding can amount to conduct that is an abuse of the latter court’s process, or a contempt; thirdly, the exercise of compulsory powers in administrative proceedings can amount to an abuse of process that a superior court of record, such as this Court, can stay, as Mason CJ, Deane and Dawson JJ explained in Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-396, see too at 393; cf Strickland at [170]-[172] per Keane J. In addition we take into account that the principle of legality applies to the construction of legislation, such as the powers in the Coroners Act that enable evidence to be taken by the Coroner under compulsion.

174    Of course, there can be no property in a witness who is not a party to a court proceeding. Nonetheless, speaking generally, the law recognises that the conduct and evidence of certain individuals will be treated as the conduct of an artificial person, such as a corporation, not simply because provisions such as s 87(1)(b) of the Evidence Act so provide, but because in acting in his or her role, the individual is, as Mason CJ, Wilson and Toohey JJ aptly described it, “the embodiment of the company”: Hamilton v Whitehead [1988] HCA 65; 166 CLR 121 at 130, coining what Lord Reid had said in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170 (see Hamilton at 127).

175    By the time of the hearing of the appeal, the Coroner had made clear that she intended to compel Captain Lomas to give evidence when the inquest resumed. Her Honour incorrectly found in her reasons of 12 April 2018 (at [12(g)]) that the appellant had failed to identify how it was disadvantaged by the continuation of the inquest: cf Strickland at [75]-[77], [81] per Kiefel CJ, Bell and Nettle JJ.

176    Those circumstances enlivened the general supervisory jurisdiction of this Court, as a superior court of record, to ensure that justice is administered and not impeded in lower tribunals, as explained by Dixon CJ, Fullagar, Kitto and Taylor JJ in John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 at 363; applied in Grassby v The Queen [1989] HCA 45; 168 CLR 1 at 17 per Dawson J with whom Mason CJ, Brennan, Deane and Toohey JJ agreed. As a matter of practical reality, if Captain Lomas were required to give evidence to the Coroner before the completion of the criminal trial, that requirement would have a tendency to interfere with the due course of justice in that trial for the reasons we have explained: cf McRae at 370.

177    It is common ground in the present case that in the ACT Coroners Act there is no clear statutory exclusion of a corporation’s rights to decide the course it wishes to adopt in defence of a criminal charge and to put the Crown to proof without advancing any form of positive defence.

178    It is also clear, in our opinion, that once criminal charges are laid against a corporation, a separate executive inquiry may not, by means of interrogatories, seek to compel that corporation to assist the executive inquiry by answering questions on matters which relate to those criminal charges or, it may be said, for the purposes of those criminal proceedings. One example is Nutricia, which we have considered above and which was accepted before us by each side as being correct. Thus, in relation to the inquest, the Coroner could not act, under s 43 of the ACT Coroners Act, to require the appellant, which has been charged with criminal offences, to produce a relevant document or other thing to the Coroner where that document or other thing related to the criminal charges. That is because if the Coroner did so, she would be interfering with the administration of justice in the criminal proceeding, even though the appellant could be required in the criminal proceeding to produce the document or other thing: Caltex.

179    Captain Lomas has not been charged so no questions such as those considered in X7 arise in relation to him. Also, he is entitled to invoke, if appropriate, the privilege against self-incrimination in the inquest. Under s 51B of the ACT Coroners Act, if he objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove he had committed an offence, then the Coroner must decide whether or not there are reasonable grounds for the objection. If the Coroner decides that there are no such grounds, Captain Lomas need not give the evidence unless required by the Coroner to do so under s 51B(4). Thereafter there are certain protections for him but these exist only in respect of proceedings in an ACT Court: see ACT Coroners Act s 51B(7).

180    It is not a ground of objection that a witness, such as Captain Lomas, considers that his answers may incriminate the appellant (as opposed to himself) and he (as opposed to his employer) has no statutory basis for objecting to give evidence on that ground.

181    It is a potential distraction to consider the state of affairs only in relation to the unavailability of self-incrimination privilege to the appellant as a corporation. It would be easy to do so where criminal proceedings had not been commenced against the corporation in question. Once criminal proceedings have been commenced, as here, the relevant perspective is the accusatorial system of criminal justice and the fundamental principle that the onus is on the prosecution to prove its case. If Captain Lomas were charged either with the same offences as the appellant or as an accessory to the appellant, he could not give evidence for the prosecution or be compelled to do so himself in the inquest or criminal trial: cf Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 565 [51]-[52] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; see too at 585-587 [114]-[117] per Heydon J, and s 17(2) of the ACT Evidence Act.

182    Kiefel CJ, Bell and Nettle JJ in Strickland at [95] said that the fundamental principle of the accusatorial process is that “it is for the prosecution to prove the guilt of an accused person”. They said that the companion rule to that principle is that an accused person cannot be compelled to testify to the commission of a charged offence. Their Honours continued:

… the process for the investigation, prosecution and trial of an indictable Commonwealth offence is entirely accusatorial …. subject to statute, an accused is not to be called upon to answer an allegation of wrongdoing until presented with particulars of the evidence on which it is proposed to rely in proof of a charge and then only to enter a plea of guilty or not guilty when and if charged.

183    In our opinion, subject to what we consider in the following paragraphs, what has been referred to as the companion rule, that an accused person cannot be required to testify, is not engaged as, unlike the position with interrogatories, the prosecution is not seeking to compel the person charged with the crime (namely the appellant) to assist in the discharge of the prosecution’s onus of proof.

184    Does s 87 of the ACT Evidence Act have the effect that the appellant corporation is being so compelled? The provision is discussed briefly at [35635] of Heydon J D, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017), where the learned author states that the provision, particularly so far as s 87(1)(b) is concerned, widens the common law. At common law an employee’s admission was only admissible if the employee had authority to speak; it was not enough that the matter spoken about was within the scope of employment. Cross reference was made to Fraser Henleins Pty Ltd v Cody [1945] HCA 49; 70 CLR 100. The provisions of s 87(1)(b) altered the common law which Mason CJ and Toohey J said in Caltex at 504 was that “[o]ral evidence given by an officer of a corporation is that of the witness, not that of the corporation” (footnotes omitted).

185    Applying s 87(1)(b) prospectively to the present circumstances, anything said by Captain Lomas in giving evidence before the Coroner could be tendered against the appellant as an admission by it in the court hearing the criminal proceedings. For the purpose of determining whether such a previous representation by Captain Lomas was also taken to be an admission by the appellant, the court hearing the criminal proceedings would admit the representation if it was reasonably open to find that, when the representation was made, Captain Lomas was an employee of the appellant and what he said in evidence before the Coroner related to a matter within the scope of his employment. By s 87(2) the hearsay rule would not apply to what Captain Lomas had said that tended to prove that he was an employee of the appellant or as to the scope of his employment.

186    Does the fundamental principle that it is the prosecution which must prove the guilt of an accused person beyond reasonable doubt yield a different conclusion? Would permitting evidence by Captain Lomas in the inquest which tended to incriminate the appellant in relation to the charges against it constitute a whittling down of the fundamental principle that the onus of proof is on the prosecution to prove its case?

187    The consequence of the Coroner requiring Captain Lomas to give evidence will be to reveal matters about whether he will, or may, give evidence for the appellant at the trial and, possibly, what that evidence is. All of those matters are not now known to the CDPP or the Commonwealth (AAD), as the co-accused, and neither can compel the appellant to reveal them. That is because of the appellant’s common law right to decide how to meet the case that the prosecution must prove beyond reasonable doubt, without the prosecution or co-accused having any entitlement to know, beyond the appellant’s plea of not guilty, how it will defend the charge. That is so, even if it knows (but the prosecution or co-accused do not) that, for example, Captain Lomas will not give evidence for it because of a concern about his own potential exposure or for some other reason.

188    Thus, the Coroner’s use of her compulsory powers has the real potential of forcing the appellant’s hand prematurely, before the time in the criminal trial when the prosecution has closed its case. A second, but separate, aspect of the potential forcing of the appellant’s hand is the role of the Commonwealth (AAD), as its co-accused in the criminal trial, urging the Coroner to overrule the appellant’s objection to her requiring Captain Lomas to give evidence at the inquest before the trial, when knowledge of his evidence would be likely to assist it, as co-accused, in its own defence of the charges.

189    In our opinion, the crucial and dispositive consideration in relation to the issue of interference is that if Captain Lomas were compelled to give evidence in the inquest, as a matter of practical reality, the appellant’s position as an accused corporation in the criminal proceedings would be altered fundamentally: Strickland at [77]-[81]. That is because s 87(1)(b) of the ACT Evidence Act would make his evidence admissible, not merely as evidence of a witness of fact, but as evidence of an admission by the appellant itself. We therefore conclude that the primary judge erred in this respect, particularly in his reasons at [117], [120] and [137]: see [76]-[78] above.

PREMATURITY – GROUND OF APPEAL 4

190    The appellant sought to read new evidence in relation to this ground. By its interlocutory application, pursuant to r 36.57 of the Federal Court Rules 2011 (Cth), the appellant sought an order that the Court receive the affidavit of Ms Jayne Heatley, solicitor, sworn 21 October 2018 as further evidence on the appeal. That application, which was opposed, was put on the basis that the evidence went to events which occurred since the hearing before the primary judge, and in the event, at a minimum, the appellant established error and the Full Court had to make decisions about relief, it would be relevant for the Full Court to know the current status of the criminal proceedings. By order made on 22 November 2018, the Court ordered that that affidavit be admitted as further evidence on the appeal.

191    That affidavit showed that when the Comcare criminal prosecutions (No CC 44152-44154 of 2017) were mentioned on 9 October 2018 before Special Magistrate Hunter, the CDPP indicated that the length of the hearing would be between four to six weeks. For that reason, the Magistrate declined to set a hearing date and the matter was adjourned for a listing hearing before Chief Magistrate Walker on 26 November 2018, she also being the Coroner presiding over the inquest into the death of Captain Wood. Magistrate Hunter also ordered the CDPP to serve an updated brief of evidence on the appellant and the Commonwealth before the listing hearing. The appellant and the Commonwealth entered pleas of not guilty to all criminal charges at a mention on 28 August 2018 before Magistrate Campbell. The current brief of evidence as served on the appellant did not include any police record of interview with Captain Lomas or any statement by Captain Lomas.

The parties’ submissions on prematurity

192    The appellant submitted that, although described as in the alternative, the reasons were suffused with the same errors as under Grounds 1, 2 and 3. The primary judge did not bring into his “discretion” analysis the full case of contempt but rather premised the analysis on the bare possibility of a future contempt. The appellant also made the following more specific points.

193    First, it was submitted that it was no answer to an established risk of interference that the administrative body might find a way to confine its coercion to avoid the contempt. Rather, the exercise of power, with that risk, was a contempt and the role of the court on the injunction or prohibition application was to act to protect the criminal process. Accordingly, the appellant submitted the primary judge erred at [146] in ruling that he should approach the application with “restraint” and as if he were being asked to make an order fracturing a criminal proceeding. Likewise, the primary judge erred at [149] in searching for evidence of an “irreversible” step effecting the interference. The Coroner had put into force a process which posed a real risk of altering fundamentally the accusatorial system. Once evidence was adduced from Captain Lomas on the subject matter of the criminal trial, there was no legal mechanism in place, statutory or administrative, to prevent it being used by the prosecutor and the co- accused.

194    Second, the appellant submitted, the primary judge failed to attend to the correct facts concerning the position that the Coroner had adopted. Contrary to the finding at [23], nothing in the interim orders prevented a resumption of the inquest, the taking of evidence from the Chief Executive of AAD, Dr Gale, or the consideration of Dr Gale’s submission that he should be excused from giving evidence. Nor would it have prevented consideration and determination of any application by Captain Lomas to be excused. Nevertheless, following the grant of interlocutory relief the Coroner advised that the hearing listed for 1 May 2018 would not go ahead. This was not a case of prematurity. The primary judge should have found that absent this Court’s injunction, examination of Captain Lomas on the subject matter of the criminal trial would proceed.

195    Third, the appellant’s rights and interests were not derivative of, nor reducible to, Captain Lomas’ position with respect to self-incrimination, contrary to [148] of the reasons of the primary judge.

196    Fourth, the argument at [143] of the reasons, apparently accepted at [145], concerning the possible protection of the criminal process and the appellant’s position in it by the making of non-disclosure orders, was incorrect. The primary judge’s reasoning was limited to controlling access and use by the prosecution. Access by the Commonwealth (AAD) could not be controlled: its representatives would be present at and would conduct the examination. No effective protection from the prejudice thereby caused could be provided: Lee No 2 at 466 [29]. Further, no protection against the Commonwealth’s (AAD’s) use could be provided because s 40 of the ACT Coroners Act did not authorise an order limiting use. Further, the power to make a suppression order under s 40(2) could not be exercised to enable the inquest to be completed before the criminal trial because that power, to be exercised “in the public interest or in the interests of justice” was to be construed in light of the scheme that an inquest must result in a report which was published and could not result in any part of a report being private: ACT Coroners Act ss 3BA(2)(c), 40(1), 52(3) (4) and 54(1); see also Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; 255 CLR 46 at 60 [44] and Reid v Howard [1995] HCA 40; 184 CLR 1 at 17.

197    The Commonwealth submitted that the primary judge concluded that the application was premature. He found that in circumstances where the appellant could not establish that Captain Lomas would answer any questions at all, let alone in circumstances where that evidence would be available to the prosecution or the Commonwealth for use in the criminal proceedings, it was not necessary or appropriate for the Court to step into the Coroner’s shoes and purport to determine how the Coroner’s discretion should be exercised.

198    The Commonwealth submitted that what the appellant had established at the point in time at which the injunction was sought was that the Coroner was unwilling to adjourn the matter until resolution of the criminal proceedings. The more limited remedy the appellant now sought indicated that it initially overreached. Second, it was established that her Honour was unwilling to give a general direction that any examination of Captain Lomas would not extend to the matters outlined in the information and summons and statement of facts filed in the criminal proceeding. The only indication of the Coroner’s position on what questions she would allow was her statement set out at [61] above. At that point in time it was unclear to anyone what the practical outcome of the inquest resuming and Captain Lomas being called was likely to be. The situation remained uncertain. It was likely that if the appeal were dismissed that the Coroner would issue a fresh subpoena to secure the attendance of Captain Lomas at the resumed hearing and that Captain Lomas would then be obliged to enter the witness box. From that point it was difficult to know what would occur, the Commonwealth submitted.

199    The Commonwealth repeated its submission before the trial judge outlined at [79] above to the effect that Captain Lomas may enter the witness box and refuse to adopt his statement and answer any questions on the ground that the answers may tend to incriminate him. This may well be the end of the evidence if Captain Lomas continued to so refuse even under the protection of a s 51B certificate, as the Coroner could then only direct him to answer questions if the interests of justice required it and the certificate would provide no protection in WHS Act proceedings commenced against him in federal courts. Such a process would pose no risk of an interference with the administration of criminal justice and would allow the inquest to be completed. Indeed, the Coroner’s decisions about these matters, if legally infirm, were amenable to correction by way of judicial review. This regime could hardly be described as an interference with the administration of justice.

200    The Commonwealth submitted that in the event that Captain Lomas was willing to give evidence voluntarily – either with or without the protection of a certificate – a question then arose as to the scope of the questioning which the Coroner would allow in light of the criminal charges which had been laid. At this point in time, the Coroner had only indicated that she was not prepared to give the very general pre-emptive direction which the appellant sought. It was clear from her decision on that issue that she was aware that in relation to questions which were asked she still must determine whether, in the particular circumstances which then subsisted, answers should be directed.

201    In addition, the Commonwealth submitted, there was a further question for the Coroner to determine about the circumstances in which any evidence was given by Captain Lomas. Under s 40 of the ACT Coroners Act, the Coroner has a discretion to direct that a hearing or part of it take place in private and may give directions prohibiting or restricting the publication or disclosure of evidence. Accordingly, it would be open to the Coroner, if her Honour considered it necessary, to take steps to ensure that evidence given by Captain Lomas was taken in private to avoid the prosecution in the criminal proceedings obtaining any unfair advantage. Further, her Honour could make directions to ensure that the Commonwealth did not make use of the evidence in its defence of the criminal proceedings. The Coroner had power to restrict who was present on behalf of the Commonwealth and may limit publication or disclosure of the evidence which would operate as a practical constraint on use. On the question of ameliorating orders, the Commonwealth referred to Lee No 1 at 259 [151], where Crennan J said:

Under the provisions of the CAR Act, the Supreme Court’s powers to control any examination ordered, described above, can prevent the prosecution from obtaining an unfair forensic advantage, not obtainable under ordinary trial procedures, and the precise circumstances of Hammond’s case can be avoided.

The Commonwealth submitted that Courts can and do take account of the fact that an examination which is to occur is under the control of a judicial officer who is capable of ameliorating any unfair advantages that may accrue.

202    The Commonwealth submitted that the primary judge correctly found that Court intervention prior to these things being known would be premature. It was not the case that the primary judge proceeded on an incorrect understanding of the facts. His Honour’s finding was that it was not yet known whether, if Captain Lomas did attend and was asked questions, that would involve the conferral of any impermissible advantage on the prosecution or the Commonwealth.

203    Consequently, the Commonwealth submitted, the Court was not in a position to determine what the impact on the conduct of the criminal proceedings was likely to be if the inquest resumed and Captain Lomas was called as a witness. The Court should not proceed on the basis that the Coroner would allow matters to proceed in a manner which interfered with the appellant’s entitlement to a fair trial.

Consideration in relation to prematurity

204    Contrary to the alternative view of the primary judge, we would not withhold relief on the basis that the application to this Court was premature. We have decided the appeal at the level of principle which overrides issues of any need to condition or control the questioning of Captain Lomas in the inquest on which a conclusion of prematurity depends. Safeguards to answer the mischief could not be put in place pursuant to s 40 of the ACT Coroners Act.

205    We place no weight on the consideration that Captain Lomas may refuse to answer any questions on the resumption of the inquest. In our opinion that is not only speculative but does not gainsay the real risk to the due administration of justice in the criminal proceedings. It also seems likely that in the circumstances that Captain Lomas refused to answer voluntarily he would be compelled to answer, subject to the issue of a certificate.

206    In this respect we note the Commonwealth has not at any time offered any form of safeguard and it was not suggested in the Commonwealth’s submissions to this Court that it would do so.

CONCLUSION

207    For the foregoing reasons, we would allow the appeal.

208    We see no need, in light of these reasons and the status of the third respondent (the Coroner’s Court), to do any more than stay the operation of the subpoena or any further subpoena issued or to be issued to Captain Lomas. In other words, we see no present need for writs of certiorari or prohibition. If further orders become necessary, the parties have liberty to apply.

Associate:

Dated:    15 February 2019

ANNEXURE

Key provisions of the Coroners Act 1997 (ACT)

13    Coroner’s jurisdiction in relation to deaths

(1)    A coroner must hold an inquest into the manner and cause of death of a person who—

…

(g)    dies after an accident where the cause of death appears to be directly attributable to the accident; …

…

34    Hearings

For an inquest or inquiry, a coroner may conduct a hearing.

...

36    Adjournment of hearing

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

…

40    Hearing in public except in certain cases

(1)    Subject to subsection (2), a hearing must be in public.

(2)    If a coroner is of the opinion that it is desirable in the public interest or in the interests of justice to do so, the coroner may, by order—

(a)    direct that a hearing or part of it must take place in private and give directions about the people who may be present; and

(b)    give directions prohibiting or restricting the publication or disclosure of evidence whether or not a hearing has been held.

(3)    A person commits an offence if the person engages in conduct that contravenes an order.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

…

43    Power of coroner to subpoena witnesses etc

(1)    If a coroner is satisfied that—

(a)    a person may be able to give evidence or produce a relevant document or other thing to the coroner; or

(b)    a person who may be able to give evidence before a coroner will not voluntarily, or does not, appear at a particular time and on a particular date;

the coroner may issue a subpoena requiring the person to appear before the coroner at a time and on a date specified in the subpoena—

(c)    to give that evidence or produce that document or thing; or

(d)    to give that evidence and produce a document or thing in the possession, custody or control of the person that is mentioned in the subpoena; or

(e)    to produce a document or thing in the possession, custody or control of the person that is mentioned in the subpoena.

(2)    A person is taken to have complied with a subpoena under subsection (1) (a) if the person delivers the document or thing to the court before the date specified in the subpoena.

(3)    A person cannot rely on the common law privileges against self-incrimination and exposure to the imposition of a civil penalty to refuse to produce a document or other thing required under a subpoena.

Note    The Legislation Act, s 171 deals with client legal privilege.

(4)    However, any information, document or other thing obtained, directly or indirectly, because of the production of the document or other thing, is not admissible in evidence against the person in a civil or criminal proceeding, other than a proceeding for—

(a)    an offence in relation to the falsity or the misleading nature of the document or thing; or

(b)    an offence against the Criminal Code, chapter 7 (Administration of justice offences).

…

48    Evidence

(1)    For an inquest or inquiry, a coroner may take evidence on oath and, for that purpose—

(a)    the coroner may require a witness to take an oath; and

(b)    the coroner, registrar or other appropriate officer of the court may administer an oath to a witness.

Note    Oath includes affirmation and take an oath includes make an affirmation (see Legislation Act, dict, pt 1).

(2)    A coroner may—

(a)    require a witness to answer a question put to the witness; and

(b)    if a person appears before a coroner under a subpoena—require the person to give evidence or produce a document or thing stated in the subpoena.

(3)    A record of evidence made for an inquest or inquiry is not, only because it is such a record, admissible in any court as evidence that a person made the depositions included in the record.

(4)    Subsection (3) does not apply in relation to a prosecution for an offence against part 7 or the Criminal Code, chapter 7 (Administration of justice offences).

…

51    Access to documents etc

A coroner may make available to any person with sufficient interest in an inquest or inquiry—

(a)    any document or thing that is produced at, or the coroner intends to consider in relation to, an inquest or inquiry; and

(b)    any evidence relevant to the inquest or inquiry to which the coroner intends to have regard.

…

51B    Privilege in relation to self-incrimination in coronial inquest or inquiry

(1)    This section applies if a witness for an inquest or inquiry objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness—

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

(b)    is liable to a civil penalty.

(2)    The coroner for the inquest or inquiry must decide whether or not there are reasonable grounds for the objection.

(3)    Subject to subsection (4), if the coroner decides that there are reasonable grounds for the objection, the coroner must not require the witness to give the evidence and must tell the witness—

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

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

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

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

(c)    of the effect of the certificate.

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

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

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

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

(6)    The coroner must also give a witness a certificate under this section if—

(a)    the objection has been overruled; and

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

(7)    In any proceeding in an ACT court or before any entity authorised by a territory law, or by consent of parties, to hear, receive and examine evidence, the following evidence cannot be used against a person:

(a)    evidence given by the person in relation to which a certificate under this section has been given;

(b)    evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence.

(8)    However, subsection (7) does not apply to a criminal proceeding in relation to the falsity of the evidence.

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

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

(11)    A certificate under this section may only be given to a witness who is an individual.

…

54    Requests for copies of reports of findings

(1)    A coroner holding an inquest (other than an inquest into a death in custody) must, on the request of a member of the immediate family of the deceased or a representative of that member, make available a copy of the coroner’s findings to that member or representative.

…

58    Procedure where evidence of indictable offence or indictment to be presented

(1)    Subsection (3) applies if, during an inquest or inquiry, a coroner has reasonable grounds for believing that, having regard to the evidence given at the inquest or inquiry, a person mentioned at the inquest or inquiry has committed an indictable offence.

(2)    For subsection (1), the coroner must have regard to—

(a)    the admissibility at trial of the evidence given at the inquest or inquiry; and

(b)    whether the director of public prosecutions, or a person who may be affected by the referral to the director of public prosecutions of evidence relevant to the alleged offence, is, or has been, given the opportunity to present or give evidence in connection with the alleged offence.

(3)    The coroner—

(a)    must, by written notice, tell the director of public prosecutions about the coroner’s belief; and

(b)    for a related indictable offence—must not proceed further with the inquest or inquiry until the day worked out under section 58A, other than to establish the following facts:

(i)    for an inquest—the death of a person, the person’s identity and the date and place of the person’s death;

(ii)    for an inquiry—the date and place of a fire or disaster.

(4)    Subsection (5) applies if, during an inquest or inquiry—

(a)    the director of public prosecutions, by written notice, tells the coroner holding the inquest or inquiry that an indictment will be presented against a person for a related indictable offence in relation to—

(i)    the death of a person who is the subject of the inquest; or

(ii)    the matter the subject of the inquiry; or

(b)    the Attorney-General presents an indictment against the person for a related indictable offence.

Note    Indictment includes information, and present an indictment includes lay an information (see Legislation Act, dict, pt 1).

(5)    The coroner must not proceed further with the inquest or inquiry until the day worked out under section 58A unless the coroner limits the inquest or inquiry to establishing only the facts mentioned in subsection (3) (b) (i) or (ii).

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

(7)    In this section:

related indictable offence, in relation to an inquest or inquiry, means an indictable offence that raises the issue of whether a person caused a death, suspected death, fire or disaster the subject of the inquest or inquiry.

58A    When inquest or inquiry may proceed—s 58

(1)    For section 58 (3) or (5), the coroner may proceed with the inquest or inquiry—

(a)    if a prosecution is not started on or before the day after the day that is 3 months after the day the coroner—

(i)    gave notice to the director of public prosecutions under section 58 (3) (a); or

(ii)    received notice from the director of public prosecutions under section 58 (4) (a); or

(b)    on a day after—

(i)    the day the director of public prosecutions gives notice to the coroner that—

(A)    no indictment is to be presented in relation to the related indictable offence; or

(B)    if an indictment was presented in relation to the offence—the director of public prosecutions has discontinued or intends to discontinue the proceeding started by the indictment; or

(ii)    if the person is not committed to stand trial for the offence (the person is discharged), and is not indicted for the offence by the director of public prosecutions or the Attorney-General within 28 days after the day the person is discharged—30 days after the day the person is discharged; or

(iii)    if the person is committed for trial or indicted for the offence—the day after the day the director of public prosecutions gives notice to the coroner that the proceeding for the offence has been finally decided; or

(iv)    if the person is found guilty of the offence, and the director of public prosecutions has not given notice under subparagraph (iii) that the proceeding for the offence is finally decided—30 days after the proceeding is finally decided.

(2)    A coroner may continue an inquest or inquiry after the day mentioned in subsection (1), but must not make a finding inconsistent with the judgment or verdict of the court that finally determined the guilt or innocence of the person for the related indictable offence.