Borland v NSW Deputy State Coroner & Ors [2006] NSWSC 982

Borland v NSW Deputy State Coroner & Ors [2006] NSWSC 982

The Deputy State Coroner made a discretionary error in requiring the plaintiff to answer questions because he did not assess the risk and level of possible civil penalty to which the plaintiff was exposed, including that a s 33AA certificate would not protect him from use of the compelled evidence in potential Police Act action by the Commissioner. That material consideration had to be weighed against the importance of the evidence and the interests of justice, so the ruling had to be returned for determination according to law.

Jurisdiction
Australia
Judgment Date
31 August 2006
Procedural Posture
Common Law Division Summons for Relief Against a Coroner's Court Ruling Requiring the Plaintiff to Give Evidence at an Inquest / Supreme Court Determination of Challenge to Interlocutory Ruling at Inquest Into the Death of Maxwell Philips
Outcome
Declaration of error; matter returned to the Coroner's Court for redetermination according to law; costs awarded to the plaintiff against the second and third defendants.
Legal Topics
['privilege Against Self Incrimination' 'penalty Privilege' 'civil Penalty' "coroner's Power to Compel Evidence" 'discretionary Error' 'certificates Under S 33 AA of the Coroners Act 1980']
['coronial Law' 'evidence' 'administrative Law' 'police Disciplinary Law'] ['privilege Against Self Incrimination' 'penalty Privilege' 'civil Penalty' "coroner's Power to Compel Evidence" 'discretionary Error' 'certificates Under S 33 AA of the Coroners Act 1980']

Case Brief

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Procedural Posture

Common Law Division Summons for Relief Against a Coroner's Court Ruling Requiring the Plaintiff to Give Evidence at an Inquest / Supreme Court Determination of Challenge to Interlocutory Ruling at Inquest Into the Death of Maxwell Philips

Legal Issues

  1. 1 ['Whether the Deputy State Coroner erred in requiring the plaintiff police constable to answer questions at the inquest despite a claim of privilege based on possible exposure to civil penalty under the Police Act 1990.' 'Whether potential action by the Commissioner of Police under s 173 or s 181D of the Police Act 1990 constituted liability to a civil penalty for the purposes of s 33AA of the Coroners Act 1980.' "Whether the Coroner's discretion miscarried by failing to consider the magnitude of the risk and possible penalty, including the limited protection provided by a s 33AA certificate." 'Whether the plaintiff should be prohibited from being required to give potentially self-incriminating evidence at the inquest.']

Ratio Decidendi

The Deputy State Coroner made a discretionary error in requiring the plaintiff to answer questions because he did not assess the risk and level of possible civil penalty to which the plaintiff was exposed, including that a s 33AA certificate would not protect him from use of the compelled evidence in potential Police Act action by the Commissioner. That material consideration had to be weighed against the importance of the evidence and the interests of justice, so the ruling had to be returned for determination according to law.

Court Disposition

Declaration of error; matter returned to the Coroner's Court for redetermination according to law; costs awarded to the plaintiff against the second and third defendants.

Orders

  • ['I declare that the first defendant erred in law in that part of his ruling as determined that the plaintiff was obliged to answer questions at the inquest into the death of Maxwell Phillips.' "I direct that the matter be returned to the Coroner's Court in order that that ruling be determined according to law."...