FARDELL V THE ATTORNEY-GENERAL ON BEHALF OF THE CORONER'S COURT AT NORTH SHORE AND AUCKLAND HC AK CIV 2006-404-3638

FARDELL V THE ATTORNEY-GENERAL ON BEHALF OF THE CORONER'S COURT AT NORTH SHORE AND AUCKLAND HC AK CIV 2006-404-3638 1 November 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-3638UNDER the Judicature Amendment Act 1972, the Coroners Act 1988, the New Zealand Bill of Rights Act 1990 and the Declaratory Judgments Act 1908 IN THE MATTER OF an inquest into the death of JOHN ROBERT FORTESCUE FARDELL BETWEEN KATHLEEN MARY FARDELL Plaintiff AND THE ATTORNEY-GENERAL ON BEHALF OF THE CORONER'S COURT AT NORTH SHORE AND AUCKLAND Defendant Hearing: 9 October 2006 Counsel: J R Billington QC and C J R Baird for Plaintiff No appearance by or on behalf of Defendant B D Gray QC, Amicus Curiae Judgment: 1 November 2006JUDGMENT OF HEATH JSolicitors: Taylor Grant Tesiram, Auckland Crown Law Office, Wellington (P Gunn) Counsel: J Billington QC, Auckland CJR Baird, Auckland B D Gray QC, AucklandTable of contents The issue [1]Background facts(a) The circumstances of Mr Fardell's death [3](b) The inquest [8](c) Publicity [21]The Coroner's ruling on the suppression application [24]The application for judicial review [31]Analysis: Ought the evidence to have been suppressed? [37]The Coroners Act 2006 [61]Result [66]The issue[1] Mrs Fardell is the widow of the late Robert Fardell QC. She seeks judicial review of a Coroner's decision not to suppress certain evidence given at an inquest into the cause of her husband's death. [2] The application raises important questions of principle and practice in relation to the jurisdiction of the Coroner's Court to forbid the publication of evidence given before it. At its most fundamental level, the question is: in what circumstances ought the open justice principle yield to (the predominantly) private interests of the deceased and his or her family?Background facts(a) The circumstances of Mr Fardell's death[3] Mr Fardell was a prominent barrister, known principally for his skill as an advocate and strategist in commercial litigation. He was a very busy man. [4] On the morning of Sunday 11 December 2005, Mr Fardell was working at home with a colleague on a pending case. After the colleague left, at about 11am, Mr Fardell took his dog for a walk and returned with coffee. He took an afternoon nap. Around 5pm, after some discussions with his wife, he left his home to take a walk. He passed a neighbour on his journey. Though the neighbour thought Mr Fardell looked distracted, his behaviour was not unusual.[5] At about 7pm on the same day, Mr Fardell's body was found on Narrow Neck Beach. Due to the circumstances in which the body was found, the death was reported to the Auckland Coroner. A post mortem was authorised and was conducted on 12 December 2005. The post mortem examination established the medical cause of death as drowning. [6] No evidence was located to suggest that Mr Fardell harboured any intention to commit suicide. Indeed, his work on forthcoming cases suggested to the contrary. However, it became necessary for the Coroner to initiate an investigation for the purposes of determining whether to hold an inquest: s 12 of the Coroners Act 1988 (the Act). [7] As Mr Fardell's death occurred in unexplained circumstances, the Coroner decided to convene an inquest to establish the cause and circumstances of the death: ss 15(1)(a)(iv) and (v) and 20.(b) The inquest[8] The coronial inquest took place in the Coroner's Court at both North Shore and Auckland. To date, the hearing has extended over four sitting days. [9] The inquest began on 28 February 2006. At that time, evidence was given by the constable responsible for making inquiries on behalf of the Coroner. Constable Herman read his statement and produced exhibits to the Coroner. While the statement was read aloud in open Court, the evidence contained in the exhibits was not. [10] At the conclusion of the hearing on 28 February, the Coroner, Dr Murray Jamieson, announced his provisional finding that the cause of death was drowning after a fall, the cause of which was unknown. He indicated that full reasons for his findings would be given later. I am told that the usual practice in the Coroner's Court is for a draft decision to be circulated for comment among those represented at the hearing before it is released publicly.[11] Before the Court rose, an oral application was made on behalf of Mrs Fardell, under s 25(2)(b) of the Act. Mrs Fardell sought a broadly worded order suppressing from publication evidence given at the inquest. The Coroner did not finally rule on the application at that time. It is unclear, from the record, whether an interim order was made. [12] The hearing was reconvened on 28 March 2006, at the request of a Mr Siemer. Mr Siemer is the plaintiff in proceedings which were issued before Mr Fardell's death. He seeks damages in respect of alleged improper conduct by Mr Fardell in recommending appointment of receivers of Paragon Services Ltd, a company of which Mr Siemer was a shareholder. The proceeding continues against Mr Fardell's personal representatives. [13] Mr Siemer had written to the Coroner advising that he had evidence which he considered relevant to the inquest and that the Coroner should hear. Nonetheless, Mr Siemer did not appear at the reconstituted hearing on 28 March 2006. [14] The inquest was reconvened again on 11 May 2006 to allow Mr Siemer to give evidence. The hearing was adjourned, this time because of Mr Siemer's unavailability. [15] On 21 June 2006, Mr Siemer appeared at a further hearing. He was summoned by the Coroner to give evidence. However, he refused to do so unless the Coroner caused to have read out aloud all evidence previously adduced during the inquest. [16] The Coroner refused to have the evidence read aloud. On that basis, Mr Siemer declined to give evidence. Instead, Mr Siemer called a private investigator, whom he had instructed, to give evidence. The evidence was hearsay in nature and was of no evidential value. [17] At the end of the 21 June 2006 hearing, Mrs Fardell's application for suppression of evidence was renewed. The Coroner ruled against her application, though he did prohibit publication of photographic evidence. The Coroner alsoconfirmed his provisional finding of death by drowning and announced his intention to give full reasons later. [18] Mrs Fardell seeks judicial review of the Coroner's decision. The Coroner has not released draft reasons for his findings, preferring to await the outcome of the judicial review application. [19] The absence of draft reasons does affect one aspect of the application. If I were to grant the application for judicial review and order that certain evidence not be published, a separate issue may arise if the Coroner considered it necessary to incorporate some of that evidence into his reasons for his findings. [20] It is not inconceivable that the Coroner may need to refer to evidence in issue on the present application in order to explain adequately his reasons for finding death by drowning. I will reserve leave for the Coroner to apply to this Court for a variation of orders I shall make, should he reach the view that reference to some or all of the suppressed evidence is necessary to explain his decision.(c) Publicity[21] The inquest attracted some publicity. An article was published in the New Zealand Herald on Thursday 22 June 2006, the day after the inquest concluded. That article reported that the Coroner had found that Mr Fardell died through drowning and that the precise nature of the fall that led to him being drowned was not clear on the evidence adduced. [22] The article referred not only to the inquest but also to the claims of Mr Siemer in the proceedings against Mr Fardell. It also reported on exchanges between Mr Siemer and the Coroner at the hearing. [23] Mr Billington QC, while arguing for suppression of evidence of a personal nature on behalf of Mrs Fardell (in his submission, the evidence was not relevant to the finding of cause of death), accepted that evidence was given at the inquest whichis already within the public domain. He accepted that such evidence ought not to be suppressed from further publication.The Coroner's ruling on the suppression application[24] The specific orders sought on behalf of Mrs Fardell before the Coroner were: a) Prohibiting the publication of any evidence given at the inquest or of any other part of the proceedings of the inquest; or b) Prohibiting Vincent Ross Siemer either directly or indirectly from publishing or causing to be published any evidence given at the inquest or any other part of the proceedings of the inquest other than as permitted by the Coroner; or c) Such further orders as to production of publication of any evidence given at the inquest as the Coroner deems just. The order sought in relation to Mr Siemer personally was not pursued in this Court. For that reason, there was no need to join Mr Siemer as a party to this proceeding. Mr Siemer will be bound if this Court were to make an order, in the same way that any member of the public is obliged to comply with it. [25] Section 25(2)(b) of the Act confers a discretion on a Coroner to prohibit publication of any evidence given at an inquest if he or she were satisfied that "it is in the interests of justice, decency, or public order to do so". [26] The Coroner took the view that there were two "deeply based fundamental rights derived from social, political and jurisprudential considerations of considerable antiquity" which underpinned "the existence and the stability of our political and legal institutions": namely, freedom of speech and open trials. The Coroner referred to ss 14 and 25(a) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).[27] The Coroner regarded those principles as applicable to a coronial inquest and "not to be lightly derogated from for any reason". The Coroner concluded that the orders sought were not justified because: Any order under s 25(2)(b) must be made in accordance with the principles of natural justice and comply not only with the requirement that it be in the interests of justice, decency or public order, but also be the least possible restriction on freedom of expression and the principle of open justice where applicable. "It will be observed therefore that the starting point is that an inquest is a public matter unless there is proper reason in terms of the statute to exclude members of the public, or suppress evidence." (The Coroner's Court v Newton [[2006] NZAR 312 (CA)].[28] Dealing specifically with grounds advanced on behalf of Mrs Fardell, the Coroner held: a) The mere fact that publication could affect any later Court hearing (in this case proceedings brought by Mr Siemer against the late Mr Fardell's estate) was an insufficient basis on which to order prohibition of publication of evidence. b) The criterion of "decency" was not met to a sufficient degree to override the open justice principle, though it was appropriate to prohibit publication of photographic evidence produced as exhibits at the inquest. c) There was no imminent threat of physical disruption to the inquest justifying suppression on the grounds of "public order". [29] When the present application was filed on 29 June 2006, Cooper J made interim orders prohibiting publication of the relevant evidence, pending further order of the Court. The proceeding was listed as X v X. [30] I indicated at the hearing that there was no basis to suppress the names of the parties to this proceeding. The name of the deceased and the fact that an inquest has been held are already in the public domain. For that reason, the names of the parties are recorded in this judgment and may, subsequently, be published.The application for judicial review[31] Mrs Fardell challenges a discretionary decision made by the Coroner. It is common ground that, in order to succeed, an error of law must be established or it must be shown that the Coroner took into account irrelevant considerations, failed to take account of relevant considerations or reached an unreasonable decision, in the sense described in Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA). [32] Mr Billington and Mr Baird, for Mrs Fardell, based their submissions on the proposition that the Coroner incorrectly applied s 25(2)(b). They submitted that the Coroner, in effect, fettered his discretion by treating it as more narrow in scope than it is. Also, they submitted that the reasons given for refusing the orders sought did not justify the orders made. [33] The Coroner, in accordance with usual practice, abides the decision of this Court on the judicial review application. Because no other person had standing to be heard on the present application, I appointed Mr B D Gray QC as amicus curiae to make submissions on the issues raised. That was done to ensure that I had the benefit of full argument on a point raising public law issues. [34] I am grateful to Mr Billington, Mr Baird and Mr Gray for the quality of their arguments, from which I have derived considerable assistance. [35] Although the present application is directed to the particular circumstances of the late Mr Fardell's death, the issues raised are important for the Coroner's Court. Therefore, I explain my reasons for judgment more fully than might otherwise be necessary. [36] There was not much difference between the approaches advocated by Mr Billington and Mr Gray. Any differences lie in the context in which the underlying principles fall to be applied. As Mr Gray submitted, a more "nuanced" approach may be needed to the suppression issue to meet the needs of the coronial jurisdiction.Analysis: Ought the evidence to have been suppressed?[37] In The Coroner's Court v Newton [2006] NZAR 312, at 319-320, para [40], the Court of Appeal endorsed an extract from Laws NZ, Coroners, para 25:25. GeneralA Coroner's Court is a Court of record. A Coroner's inquest is a judicial hearing presided over by a warranted judicial officer, who has most of the ancillary powers of a District Court Judge. An inquest is a fact-finding exercise rather than a method of apportioning guilt. The procedures and rules of evidence that are suitable for one exercise are unsuitable for the other. In an inquest there are no parties, there is no indictment, and there is no trial. There is simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial. The fact that cross examination by counsel for permitted interested parties is allowed does not detract from the inquisitorial nature of the inquiry, nor from the fact that the findings are not conclusive as to the civil or criminal liability of any person.[38] Deaths without a known cause, unnatural or violent deaths, suicides, deaths occurring while a person is undergoing some form of medical procedure and deaths in prisons or psychiatric hospitals, must be reported to a Coroner: s 4 of the Act. [39] The extent of the Coroner's jurisdiction at an inquest is set out in s 15 of the Act. Section 15(1) provides:15 Purpose of inquests(1) A coroner holds an inquest for the purpose of— (a) Establishing, so far as is possible,— (i) That a person has died; and (ii) The person's identity; and (iii) When and where the person died; and (iv) The causes of the death; and (v) The circumstances of the death; and (b) Making any recommendations or comments on the avoidance of circumstances similar to those in which the death occurred, or on the manner in which any persons should act in such circumstances, that, in the opinion of the coroner, may if drawn to public attention reduce the chances of the occurrence of other deaths in such circumstances.Section 15(2) deals with the circumstances in which a Coroner may comment on the conduct of any person in relation to the circumstances of death, none of which is relevant in the present case. [40] Section 25 of the Act deals both with the need for a public hearing and the exclusion of people from or suppression of evidence given at the inquest. Section 25 states:25 Inquests to be public(1) Except as provided in this section, every inquest shall be held in a place that is open to the public. (2) A coroner may— (a) Exclude any persons from the whole or any part of an inquest; or (b) Prohibit the publication of any evidence given at an inquest or any other part of the proceedings of an inquest,—if satisfied that it is in the interests of justice, decency, or public order to do so. (3) A coroner may direct any witness whose evidence has not yet been heard at an inquest to remain, or go and remain, outside the place where it is being held until required to give evidence. (my emphasis)[41] In balancing public and private interests there are two aspects of this case which, in my view, assume some prominence: a) The first is that, while he was a prominent and well-known commercial Silk, Mr Fardell and his wife led private lives. Unlike so- called "celebrities", they did not seek to put their private lives into the public domain. That is a relevant factor in determining the extent of any privacy expectation to which they were entitled for personal matters such as health, finances and relationship issues. b) The second is a point made often in defamation cases. While members of the public may be interested in the background to Mr Fardell's death and the circumstances that led to it, it does not follow that there is public interest in that information imparted tothem: see, for example, Brooks v Muldoon [1973] 1 NZLR 1 at 8. However, I accept that point must be considered now in the context of s 14 of the Bill of Rights, as explained in Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA) at 561, para [54]. [42] The origins of s 25(2)(b) can be traced back to s 16(1) of the Coroners Act 1951. That section provided:16 Hearing in public(1) Subject to the provisions of this Act, the room in which an inquest is held shall be open to the public: Provided that if the Coroner considers it desirable in the interests of justice, decency and order, he may exclude all or any persons from the whole or any part of the proceedings at the inquest, or may prohibit the publication of any part of the evidence given at the inquest.[43] The earlier legislation, the Coroners Act 1908, contained no similar provision, probably because that Act was not seen as a code and remained heavily reliant on English practice. [44] The issue of suppression was addressed in Parliamentary inquiries before the 1951 statute was passed. Hansard (1951) at 1185 records observations by the then Attorney-General on the second reading of the Coroners Bill. [45] The Attorney-General indicated that the Bill was intended to codify law relating to inquests and the jurisdiction of Coroners. Reference was made to theReport of the Departmental Committee on Coroners (1936), a Sessional Paper presented by the Secretary of State for the Home Department to the Parliament of the United Kingdom in January 1936. The Chair of that Committee was Lord Wright. [46] The Wright Committee set out a recommendation for publicity to be given to inquests:Publicity of Proceedings205. A coroner's court is ordinarily open to the public, and within the limits of the available accommodation any person has, in the absence of special reasons to the contrary, a right to be present. It was,however, laid down by the High Court in 1827, in the case ofGarnett v Ferrand, [[(1827) 6 B and C 610; (1829) 108 ER 576] that for special reasons, e.g. in the interests of justice, decency and order, and from the consideration of what is due to the family of the deceased, the coroner may, at his discretion, exclude the public from his court during the whole or any part of the proceedings. In practice inquests are almost invariably held in public.[47] The Committee observed, at paras 208 and 210:208. We are only concerned in this report with the question of inquests. Many witnesses stressed the value of preserving the general rule that inquests should be held in public. The general principle in this country is that judicial enquiries should be held in open court. We think that this general principle applies to inquests, and that, with the one very important exception of inquests on suicides, the advantages of holding inquests in public far outweigh the disadvantages. 210. We have recommended that in one special class of case, namely suicides, there should be a restriction on the publication in the Press of proceedings at inquests. Apart from that we think also that an inquest should be held in public, subject to the coroner having the discretion at present vested in him to order special cases to be held in private, and we should leave the question of publication entirely to the existing law.[48] Section 29(3)(a) of the Act reflects the recommendation made by the Wright Committee in respect of self-inflicted deaths:29 Publication of details of self-inflicted deaths(3) Where any coroner has found a death to be self-inflicted,— (a) Subject to paragraph (b) of this subsection, without the authority of a coroner no person shall make public any particular of the death other than— (i) The name, address, and occupation of the person concerned; and (ii) The fact that the coroner has found the death to be self-inflicted; but (b) Nothing in paragraph (a) of this subsection— (i) Prevents the Police Complaints Authority from publishing under section 34(1)(b) of the Police Complaints Authority Act 1988 a report that includes any particular of the death; or (ii) Prevents the Commissioner of Police from publishing under section 34(2) of that Act an opinion orrecommendation under section 27 or 28 of that Act, or any part of any such opinion or recommendation, that includes any particular of the death; or (iii) Prevents any person from making public a particular of the death contained in any such report, opinion, recommendation, or part of an opinion or recommendation, published under that Act,— without the authority of a coroner.[49] In Garnett v Ferrand, the decision to which the Wright Committee referred in para 205 of its report, a Coroners Court had been assembled for an inquest where the body was in view. A journalist entered the room and refused to leave when requested. He was removed forcibly. The journalist bought an action against the Coroner for assault and refusing to allow him to be present. [50] Garnett v Ferrand held that no action would lie against a Judge of a Court of record for an act done by him in a judicial capacity. However, at 627; 582, the Court gave examples of when it would be appropriate to exclude members of the public from an inquest:Cases also may occur, in which privacy may be requisite for the sake of decency; others in which it may be due to the family of the deceased. Many things must be disclosed to those who are to decide, the publication whereof, to the world at large, may be productive of mischief without any possibility of good. Who then is to decide whether privacy be necessary or proper? We answer, the coroner, and the coroner alone, and that the propriety of his decision cannot be questioned in an action. (emphasis added)[51] It is clear from the history from which s 25(2)(b) was drawn that the concept of "decency" was intended to include issues of privacy. The concept has a respectable pedigree, going back as far as 1827. [52] Viewed in that context, I agree with both Mr Billington and Mr Gray that the approach to suppression issues in the Coroners Court, while informed by the principles of open justice and freedom to receive and impart information guaranteed by s 14 of the Bill of Rights (see Lewis v Wilson & Horton Ltd), ought not to be determined by those considerations alone.[53] The interests of justice generally, the need to preserve the reasonable privacy interests of the family of the deceased and the dignity afforded to a human body (supported by the offence created by s 150 of the Crimes Act 1961 of improperly or indecently interfering with or offering any indignity to any dead human body) suggest that the Coroner's jurisdiction and discretion to suppress certain evidence from publication ought not to be regarded as one to be exercised sparingly because of the open justice principle and s 14 of the Bill of Rights. The context in which an inquest is to be reported is very different from a criminal trial. [54] Further, if the discretion were not so wide, there would be an incongruity between the privacy afforded to the family of a person who had committed suicide as against the family of someone into whose death an inquest was held due to the suspicious nature of the circumstances in which death occurred. [55] In my view, with respect, the Coroner erred in his approach to the exercise of the discretion for two main reasons: a) First, he added a gloss to s 25(2) of the Act, by limiting unduly the circumstances in which an order might be made under s 25(2). His suggestion that the open justice principle and the right to receive and impart information were "not to be lightly derogated from for any reason" failed to take account of the differences between coronial jurisdiction and that exercised by other Courts. b) Second, no issue of compliance with the principles of natural justice arose. For that reason, the Coroner's reference to those principles was irrelevant to the exercise of the discretion. [56] Because the exercise of the discretion is clear in this case and as it is desirable to conclude the inquest promptly, I regard it as appropriate for me to exercise the discretion afresh. [57] Much of what occurred at the inquest is already within the public domain. That information should remain public. The public has a right to know the outcomeof the inquest. As the Law Commission said at para 1 of its report, Coroners(NZLC, R 62, 2000):The State takes a vital interest in ascertaining, as precisely as possible, the cause of all deaths so that suspicions of foul play, homicide or neglect of human life can be fully investigated. The underlying objective is to identify practices that have cost human lives and then to modify or eliminate them.[58] In my view, the discretion under s 25(2) ought to be exercised having regard to that public policy goal. Any information that is relevant to that goal but not prohibited from publication by s 29(3) of the Act (dealing with self-inflicted death) ought to be published. The discretion, in appropriate cases, can be exercised in respect of other evidence adduced. [59] In this case, the evidence put before the Coroner included a personal interview with Mrs Fardell (inquiring into personal issues, including the nature of her relationship with her husband), information concerning the financial affairs of the late Mr Fardell, information concerning his medical history and privileged information of a legal nature. While that evidence was relevant to the proper conduct of the inquest, there is no reason for it to be made public knowledge. The privacy interests of the deceased and his family outweigh the open justice and s 14 principles in that regard and justify a limited suppression order. As there is no legitimate public interest in imparting that information, I intend to suppress it from publication. [60] Before making suppression orders under s 25(2), Coroners will need to consider carefully, in individual cases, the nature of the evidence sought to be suppressed and any countervailing public policy reasons for the evidence to go into the public domain. For example: a) Where an inquest is held into a death which may have been self- inflicted it may be necessary to consider whether an interim suppression order should be made until such time as a finding is made to avoid the possibility of publishing evidence that, on a finding of suicide, would be prohibited from publication under s 29(3) of the Act.b) Where foul play may be at issue, the question of suppression of evidence must be considered in the context of the publicity received as a result of a Police investigation or reports of criminal hearings. If the inquest were to precede criminal proceedings, the possibility of publication causing prejudice to the right to a fair trial must also be considered. c) Where recommendations under s 15(1)(b) are to be made, there will be a need to ensure sufficient evidence is in the public domain to explain why the recommended changes to practices are necessary, notwithstanding countervailing private interests. Those observations are not to be regarded as prescriptive or exhaustive. They are offered to illustrate the need to contextualise the exercise of the s25 discretion to the facts of the particular case.The Coroners Act 2006[61] The Act will soon be replaced by the Coroners Act 2006. In s 74 of the 2006 Act, the grounds for suppression have been expanded to include a specific reference to "personal privacy". Section 74 states:Coroner may prohibit making public of evidence given at any part of inquiry proceedingsIf satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of- (a) any evidence given or submissions made at or for the purposes of any part of the proceedings of an inquiry (for example, at an inquest); and (b) the name, and any name or particulars likely to lead to identification, of any witness or witnesses.[62] In my view, the introduction of the term "personal privacy" into s 74 of the 2006 Act does not alter the test to be applied. While it is expressed disjunctively, it is designed to make more explicit the fact that personal privacy is an element to be considered in determining whether a suppression order is required.[63] The rationale for the introduction of the phrase "or personal privacy" can be found in the Law Commission report, at 123-124, paras 398-403. After referring to submissions from the Coroners' Council, the Christchurch Coroner and the Privacy Commissioner, the Law Commission concluded, at 124, para 403:The Law Commission acknowledges the importance of the requirement that inquest hearings be in public. Notwithstanding this fact, in some instances we consider that the interests of justice are best served by restricting access to particularly sensitive information. Intensely private information is not disclosed in cases of natural death and so should not be easily accessible in coronial cases. We agree with the Office of the Privacy Commissioner that privacy should be added to the grounds in section 25 for a coroner to prohibit publication of evidence. However, it is important that the power to prohibit publication of evidence is used sparingly and that practices around the country are consistent. We envisage that a Chief Coroner would develop guidelines to assist coroners to strike an appropriate balance between the interests of the public in accessing information and the rights of individuals to privacy.[64] The view that personal privacy is incorporated into the elements of interests of justice and decency in the 1988 Act is supported by the historical background to s 25(2) of the Act to which I have already referred; particularly Garnett v Ferrandand the Wright Report: see paras [45] and [50] above. [65] For those reasons, I regard my views on the nature of the s 25(2) discretion as equally applicable to the new s 74 discretion.Result[66] The application for judicial review is granted. The order made by the Coroner, save for the order suppressing publication of photographs, is set aside. In addition to the order suppressing publication of the photographs, all evidence set out in Schedule A to the Statement of Claim of 28 June 2006 is suppressed from further publication. That evidence should be identified in the order to be sealed. [67] Leave is reserved for the Attorney-General, on behalf of the Coroner's Court, to apply to vary the orders for suppression if the Coroner were of the opinion that it was necessary to incorporate any of the suppressed evidence into his reasons for finding death by drowning.[68] An order is made prohibiting search, copy or inspection of the Court record in respect of this proceeding without leave of a Judge of this Court. Any application for leave to search, copy or inspect the Court proceedings shall be made on notice to both Mrs Fardell and the Coroner. [69] A permanent order is made that the content of the envelope containing exhibit F to the affidavit of Mrs Fardell shall be sealed and not be open for search, copy or inspection whether by leave or otherwise. [70] The interim orders made by Cooper J are set aside. They have been overtaken by the orders I have made. If the proceeding were to come back before the Court, it shall be listed for hearing as Fardell v Coroner's Court. [71] I make no order as to costs as between the parties. Mr Gray's costs shall be met out of public funds appropriated for the purpose of instructing amicus curiae. I will leave Mr Gray to liaise with those responsible for administering those funds to obtain payment of his costs and disbursements. Leave to apply is reserved should any issue as to quantum arise. [72] I thank all counsel for their assistance. ____________________ P R Heath J Delivered at 2.15pm on 1 November 2006