Commissioner of Police v Attorney General for New South Wales

Mr Todd McKenzie tragically died on 31 July 2019. Immediately prior to his death, he was the subject of a police operation involving various units of the New South Wales Police Force. Mr McKenzie was suffering from identifiable mental illness at the time of the police operation. During that operation after it was reported that he was armed with a knife and, after unsuccessfully attempting to negotiate with him, police surrounded and entered Mr McKenzie’s home in order to detain him.

A coronial inquest was required to be held concerning Mr McKenzie’s death by virtue of ss 23(1)(c) and 27(1)(b) of the Coroners Act 2009 (NSW). Consequently, a coronial brief of evidence was assembled by police investigators assisting the Coroner and an opportunity was given to the plaintiff, the Commissioner of the New South Wales Police, to review the material in the brief of evidence and make any application for public interest immunity or suppression or non-publication orders, if thought appropriate.

The Commissioner made such an application which was heard by the second defendant, Deputy State Coroner Grahame. On 17 December 2021, the Coroner made her decision rejecting all the claims for public interest immunity but making various suppression and non-publication orders and other ancillary orders. As a result of the complexity of the material to which the decision related, the orders initially made on 17 December 2021 required amendment to give proper effect to the Coroner’s decision. The orders ultimately disposing of the Commissioner’s application were made on 1 February 2022.

By a summons filed on 16 March 2022, the Commissioner has sought judicial review of the Coroner’s decision.

On 1 April 2022, Dhanji J ordered that the Attorney General be joined as the first defendant to these proceedings to act as contradictor. The Deputy State Coroner became the second defendant at that stage and a submitting appearance was filed on her behalf. It should also be noted that Mr McKenzie’s father, Mr M McKenzie, and his mother, Ms Wilkins, had been found by the Coroner to have a sufficient interest in the coronial proceedings and were permitted to make submissions to the Coroner in relation to the Commissioner’s application. In addition, two named police officers had also been allowed to be represented and to make submissions in relation to that application. These persons were referred to in the coronial proceeding as “the interested parties”, although at times it appeared that this expression was used only in respect of Mr McKenzie’s family members. In the course of considering whether the Attorney General should be joined, Dhanji J noted that all the interested parties had been informed of these judicial review proceedings but none had indicated any wish to be joined in these proceedings or to seek to be heard in this Court.

On 14 April 2022, the application for judicial review came on for hearing.

Before turning to consider the decision and orders to which the judicial review application relates, it is appropriate to note that suppression, non-publication and related orders were made in this Court in order to prevent disclosure of information or documents which might undermine the usefulness, or defeat the purposes, of these proceedings before they were determined.

On 16 March 2022, N Adams J ordered in these proceedings that:

This order 3 remains in force.

At the hearing on 14 April 2022, I made interim suppression orders for the reasons given at that time. Those orders were as follows:

In light of those orders and the sensitivity of the information in question, the fact that the Coroner’s reasons have not been published in any form and portions of the reasons have been redacted and the unredacted version has not been provided to persons other than the parties to these proceedings and their legal representatives, I have attempted, in this judgment, to refer to relevant material using circumlocutions in a manner which exposes my reasons for my conclusions without disclosing any information which ought not to be disclosed.

Further, the initial orders I propose to make will provide the parties with the opportunity, after delivery of this judgment, to consider:

The final form of the Coroner’s orders, intended to give effect to her decision of 17 December 2021 and issued on 1 February 2022, extended over 6 pages and 29 paragraphs (Tab 20 in Ex A). The relevant information and documents to which the orders related were identified in some cases by reference to various colour coded schedules and an “Aide Memoire”, provided by the Commissioner to the Coroner.

In no case was the Commissioner’s claim of public interest immunity successful. Consequently, no material in relation to which the Commissioner claimed public interest immunity was to be excluded from the coronial brief of evidence.

The Coroner’s 1 February 2022 orders can be summarised as follows:

The documents and information the subject of the various suppression and non-publication orders were identified by a number of means as follows:

There appears to be an inconsistency in these orders. The suppression orders in orders 1, 3, 4, 5, 6, 13 and 15 are absolute in their terms but orders 7, 14 and 15A expressly state that those suppression orders do not prevent disclosure to the Coroner’s court, counsel and solicitors assisting, necessary court staff, current NSW Police Force officers, two named experts, and “legal representatives of the interested parties to the inquest”. In these circumstances, it appears that those suppression orders prevent disclosure to any persons not listed in orders 7, 14 and 15A, including family members of Mr Todd McKenzie. Such a conclusion is, however, inconsistent with orders 8(b), 14A (b) and 16(b) which expressly envisage inspection of those documents and information by, and thus disclosure to, “family members of Mr Todd McKenzie”.

The Commissioner’s summons seeking judicial review of the Coroner’s decision was filed on 16 March 2022 and relevantly sought orders as follows:

The information and documents which were the subject of the judicial review application were identified in Schedules A and B to the summons and were referred to as the “contested information”. The contested information was only a subset of the information and documents which were the subject of the orders made by the Coroner because, as Mr Emmett of Senior Counsel who appeared with Mr Kaplan for the Commissioner noted, a number of the Coroner’s conclusions in relation to public interest immunity and suppression and other orders were not challenged.

It was accepted by both the Commissioner and the Attorney General that, if the Commissioner were to be successful in challenging the Coroner’s decision of 17 December 2021 and the orders made on 1 February 2022 giving effect to that decision were liable to set aside in part, the most appropriate course would be for the Court to hand down its judgment dealing with the grounds of review but not make final, dispositive orders until the parties had had an opportunity to reach agreement or make submissions as to the appropriate form of such orders and any suppression, non-disclosure or other orders in relation to this judgment or the material before the Court. I propose to adopt that course.

Three grounds of review were identified in the summons.

The first ground of review related to the Coroner’s rejection of the Commissioner’s claims of public interest immunity in their entirety. Ground 1 was in the following terms:

Particulars of ground 1 were identified as being that the Deputy State Coroner:

The summons then identified that the paragraphs of the Coroner’s reasons relevant to ground 1 were [62]-[65], [90], [92]-[93], [99]-[105], [132]-[134], [136], [160]-[164], [167]-[168], [185]-[188], [197]-[198], [200]-[201] and [211]-[214].

Since ground 1(a) and (b) were related and ground 1(c) identified a discrete matter, it will be convenient to deal with ground 1(a) and (b) together and ground 1(c) separately.

The second ground of review related to the Coroner’s failure to make any suppression, non-disclosure or restricted access orders in relation to a limited category of information. Ground 2 was as follows:

The paragraphs of the Coroner’s reasons which were said to relate to ground 2 were identified as [189], [216]-[217] and [225]-[229].

The third ground of review involved the contentions that the Coroner had erred in law or fallen into jurisdictional error by overlooking or not considering a claim or evidence as follows:

The contested information identified in Schedules A and B to the summons was colour coded by reference to the grounds of review as follows:

Particulars (a) and (b) of the first ground of review raised in substance the contention that the Coroner erred in law, or fell into jurisdictional error, when determining the Commissioner’s claims for public interest immunity by failing to balance, in accordance with the applicable principles:

In particular, this ground of review effectively involved contentions that:

It was submitted that, in relation to much of the contested information, the Coroner concluded that the Commissioner’s claim for public interest immunity must fail because the information could, might or may be relevant to findings that might be made at the conclusion of the inquest about the manner and cause of death or to recommendations that might be made. The Commissioner’s submissions contended in substance that there were a number of errors in this approach.

First, it was submitted that mere relevance or potential relevance of information to the exercise of the Coroner’s functions under ss 81 and 82 of the Coroners Act or to the interests of interested parties was not sufficient to establish that there was a public interest in disclosure. It was contended that identifying the existence and degree of relevance of the contested information to the inquest marked the beginning and not the end of the balancing exercise to be undertaken. It was said that, although the Coroner accepted that relevance was a question of degree, her Honour failed to assess the potential significance, potential importance or the likelihood, of the information being relevant to the inquest based upon the material available to her Honour at the time.

Secondly, it was submitted that the Coroner’s approach was erroneous because potential relevance of information to the inquest was not by itself sufficient to defeat a claim of public interest immunity without the required balancing exercise being conducted, which did not occur in the present case. The Commissioner submitted that her Honour failed to perform the balancing exercise as required in that her Honour approached the exercise effectively on the basis that potential relevance was determinative or dispositive of whether a claim for public interest immunity should be upheld.

Illustrations of these types of erroneous approaches by the Coroner were said to be found in the reasoning which supported her Honour’s rejection of the various claims for public interest immunity at [93], [137], [161], [186], [198], [200] and [212] of her reasons.

The Commissioner also submitted that, consistent with the failure to conduct the balancing exercise as required, there was no apparent recognition by the Coroner that information of distant or remote relevance to the inquest might more readily be outweighed by the public interest in non-disclosure. Although the Coroner referred to a “risk calculus approach”, it was submitted that her Honour failed to consider and weigh the risk of harm to effective policing against the public interest in disclosure, especially where the relevance of the information to the inquest was peripheral. In this context, the Commissioner contended that even if a balancing exercise was undertaken in relation to certain information, the required balancing exercise was not undertaken because the critical element of the degree or extent of risk was not balanced but only the fact of risk.

In relation to suppression and non-publication orders, the Commissioner submitted that the Coroner adopted the flawed or erroneous approach of pitting suppression and non-publication orders (referred to as “tailored orders”) against public interest immunity such that, if the tailored orders were “sufficient” to protect the “confidentiality” of the information, the claim for public interest immunity should be rejected. The Commissioner submitted in effect that, while it might be appropriate to take into account tailored orders which could be made when conducting the required balancing exercise, the Coroner needed to consider and balance the risks resulting from disclosure even on the limited basis permitted by the tailored orders against the public interest in disclosure having regard to the nature and extent of that interest. It was contended in substance that the Coroner did not consider the extent of the risk of harm from disclosure subject to tailored orders which was an essential part of the balancing exercise required to be carried out, if tailored orders were under consideration.

The Attorney General submitted that when considering the proper approach to the balancing exercise in a coronial context it was important to have regard to the legislative context and nature of coronial proceedings. It was noted that a coroner’s court has been described as a “court of investigation” and has the function of making findings as to the manner and cause of death, under s 81 of the Coroners Act, as well as the broad power to make such recommendations as are considered necessary or desirable, under s 82. It was submitted that, as a result, the approach to assessing whether a document was “material” adopted in ordinary adversarial litigation was inapt in the coronial context. Rather, the question for the coroner was whether the document would “materially assist” in the discharge of a statutory duty and the exercise of the broad power to make recommendations. In addition, since an inquest was required to be held where a person died “as a result of police operations”, by virtue of ss 23(1)(c) and 27(1)(b) of the Coroners Act, there was an evident legislative intent to ensure that the conduct of police, where it resulted in the death of a person, was always subject to particular scrutiny and too ready an exclusion of relevant information from the coronial brief of evidence would be inconsistent with that intent. The Attorney General also contended in effect that the default position in the legislation was that the material should be available to the public, having regard to ss 47, 65 and 74 of the Coroners Act.

In relation to the relevance of tailored orders, it was noted that a number of authorities directly support the proposition that the availability of other kinds of orders was relevant to the assessment of public interest immunity claims at common law.

The Attorney General submitted in summary that, in respect of each of the categories of information in relation to which the Coroner rejected the Commissioner’s claims for public interest immunity at [137], [161], [186], [198], [200] and [212], her Honour did engage in a balancing exercise on a fair reading of the reasons, as demonstrated by use of expressions such as: information was “not so confidential” that it could not be appropriately protected by tailored orders or dealt with in other ways; matters “weighing heavily against making a public interest immunity declaration”; and information being “sufficiently sensitive to warrant protection by way of a suppression order”. It was also submitted that the Coroner’s reasons showed that she did not simply find that potential or conceivable relevance to the enquiries was sufficient to reject the public interest immunity claims. In that regard, it was contended that the Coroner’s comments as to the value of information to the inquiry demonstrated that her Honour did not view mere relevance to be sufficient. Rather, it was submitted that in each case the Coroner found that so long as suitable protective orders were made, the public interest in disclosure outweighed the public interest in confidentiality and therefore provided grounds for denying the public interest immunity claim.

In addition, it was submitted that the investigative nature of the Coroner’s task meant that it was not possible to assess public interest immunity claims in the same manner as in adversarial litigation conduct on the basis of a set of issues defined by pleadings, for a number of reasons. First, there were difficulties in ruling that particular matters were outside the scope of the inquest in the present case and her Honour could not form the view that any of the information in question was irrelevant. Secondly, because of the investigative nature of the task and the subject matter, the fact that information was included by police assisting the coronial investigation as relevant was an indicator of the value and importance of the information in a way not available in adversarial proceedings.

The Attorney General submitted in effect that, although the Coroner did not generally seek to address the probative value of the information or its degree of importance to the inquest beyond identifying its potential relevance, her Honour was not required to do so for the purposes of determining the public interest immunity claims. This was because it was concluded that any harm flowing from disclosure could be addressed by appropriate tailored orders and attempting to determine the degree of relevance at the stage the inquest had reached would likely have proved impossible. In this regard, the Attorney General emphasised in his submissions that her Honour did not adopt the approach that conceivable relevance led necessarily to a refusal of the public interest immunity claim. Rather, it was submitted her Honour only reached that conclusion after having made an assessment that confidentiality in the sense of the risk of harm from disclosure as being low and concluding that tailored orders could adequately protect against that risk of harm.

The Attorney General also submitted that, if the Commissioner’s position was accepted, then there would have to be a rolling assessment of public interest immunity claims. It was submitted that there were conceptual and practical problems with such an approach which were elaborated upon.

In the present case, it was accepted by the parties that the common law principles relating to public interest immunity applied to the Coroner’s decision of 17 December 2021. This was correct.

Section 58 of the Coroners Act relevantly provides:

The definition of “coronial proceedings” is found in s 46 as follows:

Thus, by virtue of s 46(2)(a) and (c) and s 58(1), the rules of evidence, including the Evidence Act 1995 (NSW), did not apply in relation to the Commissioner’s claims for public interest immunity because the determination of those claims occurred in proceedings that were of an interlocutory nature dealing with evidentiary matters and case management issues in relation to an inquest and were thus “coronial proceedings” as referred to in s 58(1).

In addition, s 58(1) is not to be construed as abrogating the application of public interest immunity in coronial proceedings because:

Generally, the common law principles in relation to public interest immunity were not in dispute in these proceedings although they were not elaborated upon by the parties to any great extent.

In Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, Gibbs ACJ said at 38‑39:

If a claim of public interest immunity is successful, the documents or information need not be produced to the court and the documents or information are not available to be, and cannot be, adduced in evidence or relied upon by the court: HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 (HT v The Queen) at [29] (Kiefel CJ, Bell and Keane JJ), [71]-[72] (Gordon J); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [148] (Hayne, Crennan, Kiefel and Bell JJ). Consequently, in coronial proceedings, if a claim for public interest immunity in relation to documents proposed to be included in the coronial brief of evidence is upheld, the documents will not be included in the brief of evidence and will not be available to the Coroner conducting the inquest or to any interested parties.

The categories of documents or information that attract the operation of public interest immunity are not closed but there are various well recognised categories which have been helpfully identified recently by Abraham J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552 (Roberts-Smith (No 14)) at [17]. Relevantly for the present case, one such category is documents or information relating to sensitive police methodologies, capabilities, resources, policies and procedures. This category attracts public interest immunity because preventing disclosure of such documents or information is essential to promoting and maintaining the public interest in the detection and prevention of crime and in maintaining the safety of the community and individuals. In Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 (AG v Stuart) at 675-676, Hunt CJ at CL (Smart and Studdert JJ agreeing) observed that:

Accordingly, the public interest in the detection and prevention of crime and the maintenance of social peace and order so as to protect the community and individuals provides strong support for the non-disclosure of sensitive information concerning police methodologies, capabilities, resources, policies and procedures.

On the other hand, it must also be accepted that there is a public interest in the administration of justice by way of a coronial inquest not being frustrated by the withholding of documents or information which must be disclosed if justice is to be done.

Where it appears that both aspects of the public interest require consideration, Gibbs CJ explained in Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 at 412 that there is, in effect, a three stage process, whereby the court is required to consider, in a case such as the present:

A number of relevant principles follow from this and can be derived from the authorities in relation to identifying the relevant harm to each aspect of the public interest and carrying out the required balancing exercise.

First, the question of whether documents or information may attract public interest immunity so as to require the balancing exercise to be undertaken is to be determined on the basis of unrestricted production or disclosure for the purposes of the proceedings in question since the immunity protects complete, not partial, secrecy: The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34 (The Australian Statistician) at [41] (Steytler P, McLure JA and Newnes AJA).

Whether harm to the public interest could arise from disclosure depends on there being a real possibility, as opposed to a probability, of harm and “the incurring of the identified risk [of harm] is itself injurious to the public interest”: Roberts-Smith (No 14) at [15] and the authorities there cited, including The Australian Statistician at [46]. The nature and extent of the harm to the public interest by disclosure of the documents or information are usually assessed having regard to the evidence, both open and closed or confidential, of a senior representative of the relevant entity claiming public interest immunity.

Secondly, it is important to identify the particular respect in which the administration of justice would be frustrated if the documents and information are not disclosed. In order to show relevant harm by way of damage or impairment to the court process by non-disclosure, it must be shown that the documents or information are, or are likely to be, material in the sense that there are concrete grounds to believe that disclosure of the documents or information would materially assist given the nature of the issues in the proceedings: AG v Stuart at 675-6 and 681, Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 at [49] (Colvin J); Alister v The Queen at 412. This can be seen as reflecting the same underlying rationale which supports the principle, in both criminal and civil proceedings, that access to documents produced to a court under subpoena or notice is not permitted unless it is shown that (i) there is a legitimate forensic purpose for access, and (ii) it is “on the cards” that the documents will materially assist the case: R v Saleam [1999] NSWCCA 86 at [11] (Simpson J, Spigelman CJ and Studdert J agreeing). This same rationale also provides support for the principle that a subpoena may be set aside if it is not issued for a legitimate forensic purpose and it cannot be seen that the documents sought to be produced will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Secretary v Blacktown City Council) at [65] (Bell P, Brereton and McCallum JJA agreeing). In all cases, the essential enquiry is the extent to which the documents and information will, or are likely to, materially assist on an identified issue in the proceedings, not mere potential or conceivable relevance assessed with or without reference to the issues in the proceedings.

Consequently, in order properly to assess the nature and extent of prejudice to the administration of justice if the documents or information are not disclosed, it will generally be necessary for the issues in the proceedings to be identified with some degree of particularity having regard to the nature of the proceedings in question. If it is not established that the documents or information are material in the sense identified, then a court is not required to proceed to the third stage and weigh the competing public interests: Alister v The Queen at 412.

Therefore, the integers that are to be balanced or weighed are, on one side of the scales, the harm or damage that would be done to the public interest by disclosure and, on the other, the harm done to the public interest in the administration of justice by withholding documents which are, or are likely to be, material to determining identified issues in the proceedings.

Thirdly, if the balancing process is required to be carried out, which public interest will predominate in the particular case must be determined by reference to the circumstances of that case and there can be no statement of general application as to which should predominate in any particular case: AG v Stuart at 676 citing Sankey v Whitlam at 38-9 and Alister v The Queen at 453.

Fourthly, if a claim for public interest immunity is upheld, this will not involve a denial of procedural fairness in relation to the substantive proceedings. Since the documents protected by public interest immunity are not to be produced, they are not available to the parties or to the decision maker and the decision maker cannot rely on them in reaching any decision. It follows that there is no question of relevant procedural unfairness: HT v The Queen at [29], [32]. In this way, the public interest immunity procedure respects common law principles of natural justice: HT v The Queen at [32].

Similarly, upholding a claim for public interest immunity does not lead to any curtailing of the principles of open justice in relation to the substantive hearing. Since the sensitive information in the documents protected by public information immunity will not be available to be adduced in evidence, to be the subject of submissions or to be a basis for decision, there will be no need for there to be any restrictions, on account of the sensitive contents of the documents, in respect of the hearing being in public or the evidence, the submissions, the findings or the reasons being made public.

Fifthly, in undertaking the balancing exercise, the effectiveness or appropriateness of disclosure limitations, for example by the imposition of suppression, non-publication or restricted access orders, may be a relevant factor: The Australian Statistician at [41], [47]. It is an error, however, to determine that there would be no harm to the public interest by disclosure subject to disclosure limitations and, as a result, fail to carry out the balancing exercise: The Australian Statistician at [45].

Furthermore, in the course of its judgment in The Australian Statistician, the Western Australian Court of Appeal commented on the less than completely satisfactory nature of disclosure limitations as a means of eliminating or significantly reducing harm to the public interest flowing from disclosure, at [49]-[54], as follows:

The non-disclosure orders in The Australian Statistician apparently limited disclosure to the Court, counsel and solicitors. Where disclosure is permitted to a wider range of persons including expert witnesses and interested lay persons whose understanding of court orders and the obligation to comply with them may not be as fully developed as that of counsel and solicitors, the risks and difficulties involved in using suppression, non-disclosure and limited access orders in an attempt to eliminate or significantly reduce the risk of harm to the public interest by disclosure will naturally be even greater than those discussed in The Australian Statistician.

In addition, if a claim for public interest immunity is rejected on the basis that suppression or non-disclosure orders will eliminate or significantly reduce the risk of harm to the public interest from disclosure, so that the harm to the public interest from non-disclosure outweighs the harm to the public interest from disclosure, difficult questions relating to procedural fairness and open justice arise. This is because the documents and information will be available to the decision maker and may be used in making findings which must be explained in the decision maker’s reasons. The decision maker will have to determine in respect of which issues the parties are entitled to be accorded procedural fairness and whether that can be accommodated without substantially undermining the effectiveness of the tailored orders. In addition, the decision maker will have to determine the extent to which the principles of open justice are to be curtailed in relation to publication of the evidence, submissions, findings and reasons and whether this will undermine the effectiveness of the suppression and non-publication orders in eliminating or minimising the risk of harm to the public interest arising from disclosure.

Finally, when balancing of the competing public interests, the balance struck may differ depending on the nature of the proceedings in question: HT v The Queen at [33]. Thus, it has been held that in criminal proceedings the scales involved in balancing process may swing in favour of disclosure if the documents or information are necessary to support the defence of an accused person: Alister v The Queen at 414; Sankey v Whitlam at 42.

One of the situations where the balance will swing in favour of disclosure in a criminal prosecution is if the liberty of the subject is at stake. In civil or coronial proceedings the liberty of the subject is rarely, if ever, directly at stake. Accordingly, the balance is less likely to swing in favour of disclosure in those types of proceedings to the same extent as in a criminal prosecution.

Another reason why the balance might swing in favour of disclosure in criminal prosecutions can be seen in an observation by Lord Mance (with whom Lady Hale agreed) in Al Rawi v Security Service [2012] 1 AC 531; [2011] UKSC 34. At [101], his Lordship noted that “[i]f he Crown still does not wish to disclose the material, it can and must forgo further prosecution”. A similar observation was made by Gordon J in HT v The Queen at [71]. Thus, in criminal proceedings, the public interest in non-disclosure can be vindicated, even if disclosure is ordered, by termination of the prosecution. For similar reasons, where the person or body claiming public interest immunity has control or substantial influence over whether the proceedings in which the claim is made continue and consequently whether the documents or information will be disclosed, this may be a factor weighing in favour of disclosure. That factor does not apply in a coronial inquest which must be conducted, by virtue of ss 23(1)(a) and 27(1)(b) of the Coroners Act.

In relation to the balancing exercise in civil proceedings, Abraham J observed in Roberts-Smith (No 14) at [16]:

In light of these principles, it is appropriate at this point to consider the nature of coronial proceedings in more detail since it may be relevant to both the identification of harm to the public interest as a result of non-disclosure and the balancing exercise in relation to a claim for public interest immunity.

Coronial proceedings are not criminal or civil inter partes proceedings. The proper characterisation of coronial proceedings will depend principally on the statute under which they are conducted. Given the similarities between the 2009 Coroners Act and previous New South Wales legislation dealing with the same subject, it can be accepted that coronial proceedings under the Coroners Act involve the administration of justice and the exercise of judicial power, and they are a hybrid process containing both adversarial and inquisitorial elements: Musumeci v Attorney General of NSW (2003) 57 NSWLR 193; [2003] NSWCA 77 at [33] (Ipp JA, Beazley JA agreeing).

Relevant provisions of the Coroners Act provide a more detailed understanding of the intention of the legislature in relation to the nature and conduct of coronial proceedings.

The objects of the Coroners Act are set out in s 3 and include:

The functions of the State Coroner and Deputy State Coroner are found in s 10 of the Coroners Act and include “to ensure that all deaths … concerning which a coroner has jurisdiction to hold an inquest or inquiry are properly investigated”: s 10(1)(b).

Sections 23 and 27 relate to the Coroner’s jurisdiction and together establish that an inquest concerning a death must be held if it appears that the person has died as a result of police operations. Sections 23 and 27 relevantly provide as follows:

A number of sections in the Coroners Act give more specific insight into the way in which coronial proceedings are to be conducted. These are referred to in the paragraphs which follow.

Section 46 sets out the definition of “coronial proceedings” and has been quoted above. The interlocutory proceedings conducted by the Coroner in the present case in relation to the Commissioner’s public interest immunity application in the present case fall within that definition of “coronial proceedings”.

Section 47 of the Coroners Act establishes the general position that coronial proceedings should be open to the public but with the coroner having a discretion to conduct a hearing that is not open to the public in “special circumstances”. Section 47 provides:

Section 49 empowers a coroner in coronial proceedings to give directions and, in particular, subs (1) is in the following terms:

From s 49(1) it is evident that coronial proceedings are intended generally to be confined to determining the “real issues with which the proceedings are concerned”. In civil and criminal proceedings, the issues are usually determined by the parties, for example by the pleadings in a civil case or by the plea and the process described in s 141 of the Criminal Procedure Act 1986 (NSW) in a criminal prosecution on indictment. In coronial proceedings, the issues cannot be identified in a similar way because there are no pleadings or process similar to that in s 141 and the proceedings are not an adversarial contest between opposing parties. As a consequence, identifying the “real issues” for the purposes of s 49(1) falls to the coroner. In a case such as the present, this task can be undertaken in light of the material in the coronial brief of evidence in relation to which no claim of public interest immunity is made and any other relevant material. Identifying the “real issues” at an early stage of proceedings is essential if directions under s 49(1) are to be made.

The persons who are entitled to be represented in coronial proceedings are specified in s 57, which relevantly provides:

It can be noted that neither s 57 nor any other section of the Coroners Act expressly entitles any “interested party” granted leave under s 57 to make submissions. In Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, the High Court considered the nature and extent of the rights of family members of the deceased, who were given leave by a coroner under a provision similar to s 57, to make submissions. The majority, Mason CJ, Deane and McHugh JJ held, at 600-1, that the provision in that case did not exclude the rules of natural justice and as a result the coroner could not lawfully make any finding adverse to their interests without first giving them the opportunity to make submissions against the making of such findings. It was, however, said that the requirement to afford procedural fairness in this way to the relatives did not extend to allowing them to make submissions on all issues in the coronial proceedings. At 601, the majority went on to say:

As already noted, s 58(1) provides that a coroner in coronial proceedings is not bound by the rules of procedure and evidence that are applicable to proceedings before a court. Nonetheless, subs (2) of s 58 expressly preserves the privilege against self-incrimination and self-exposure to a civil penalty in such proceedings. In addition, for the reasons given above, public interest immunity, as well as legal professional privilege, have not been abrogated in coronial proceedings.

Under s 59, witnesses in coronial proceedings may be examined on oath or affirmation. Section 60(1) provides that a person granted leave to appear or be represented in coronial proceedings may apply to the coroner to have a particular person examined in the proceedings. By virtue of s 62, a person who appears to give evidence or produced documents must not, without lawful excuse, refuse to be examined on oath or affirmation, or refuse to answer “any question relevant to the subject matter of the proceedings”.

In relation to documentary evidence in coronial proceedings, s 63 provides:

Under s 65(1), a coroner in coronial proceedings is to ensure that witness’s evidence is recorded. Access to the coroner’s file may be granted to any person under s 65(2) if the coroner is satisfied that it is appropriate for the person to be granted access to the file and the appropriate fee is paid. In that regard, subs (3) provides:

As can be seen, s 65(3)(a) gives emphasis to the principle that coronial proceedings should generally be open to the public.

A coroner may issue a subpoena to appear and be examined, to produce a document or thing or both, under s 66. Subsection (4) of that section provides:

It is well settled that a person would not be bound to produce on a subpoena for production in the Supreme Court if the subpoena lacked a legitimate forensic purpose or it was not established that it was likely that the documentation sought would materially assist on an identified issue in the proceedings, or there is a reasonable basis beyond speculation that it is likely, or “on the cards”, the documentation would do so: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (ICAP) at [8], [9], [14], [22] (Tobias JA, Basten JA and Handley AJA agreeing); Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 at [30]-[32] (Macfarlan JA, Button and Ierace JJ agreeing); Secretary v Blacktown City Council at [65].

Having regard to the relevant principles applicable in the Supreme Court, it can be seen that s 66(4)(b) evinces a legislative intent that coronial proceedings be conducted on the basis that there are “identified issues” against which the legitimate forensic purpose of a subpoena and the materiality of the documentation sought can be assessed. If it were not so, production of documentation under a subpoena issued under the Coroners Act could not be challenged on the basis that the documentation would not materially assist on an identified issue, or that there was no reasonable basis beyond speculation that it was likely, or “on the cards”, the documentation would do so.

Part 6.4 of the Coroners Act, ss 73 to 77, deals with disclosure of information. Most relevantly, s 74 empowers a coroner in coronial proceedings to conduct a closed hearing and to prevent publication of evidence or submissions. For this purpose, “published” is defined in s 73 as including being inserted in a newspaper, publicly exhibited, broadcast by radio or television and published on the internet.

Section 74 relevantly provides:

It was not in dispute in these proceedings that, in addition to the powers in s 74(1)(b) and (c), a coroner in coronial proceedings has an implied power to make suppression and restricted access orders.

The functions of a coroner holding an inquest concerning the death of a person include making findings as required by s 81(1) which is relevantly in the following terms:

In addition, under s 82, the coroner may make recommendations:

In regard to the findings under s 81 and recommendations under s 82 (which sections are not materially distinguishable from the corresponding provisions of the Coroners Act 1980 (NSW), ss 22 and 22A respectively), it has been held that it was an error to proceed on the basis that the primary duty in a coronial inquest is to make recommendations: X v Deputy State Coroner for New South Wales (2001) 51 NSWLR 312; [2001] NSWSC 46 at [59] (O’Keefe J). The primary duty of a coroner conducting an inquest is to determine and record if a death has occurred and, if so, the identity of the deceased, the date and place of the death and the manner and cause of such death and it is important that extraneous factors do not get in the way of that primary duty: Conway v Jerram, Magistrate and NSW State Coroner [2011] NSWCA 319 (Conway) at [47] (Young JA, Campbell JA agreeing). The inclusion of par (e) in s 3 of the Coroners Act, which establishes that one of the objects of that Act is to enable coroners to make recommendations in relation to matters in connection with an inquest, does not, in my view, indicate a legislative intent to change the primary duty of a coroner conducting an inquest as referred to in Conway and the object in s 3(b).

In particular, it can be noted that the Court of Appeal in Conway, at [31], did not find any substantive reason to doubt the applicability of the remarks of Barr AJ at first instance in Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner (2010) 78 NSWLR 689; [2010] NSWSC 371 at [53]-[56] which were as follows :

Finally, it can be noted that a coroner’s court has certain powers to deal with contempt and disrespectful conduct committed during the course of coronial proceedings, by virtue of ss 103 and 103A of the Coroners Act. As a result of these powers to deal with contempt and the requirement to keep a record of evidence and record reasons, a coroner’s court has been held to be a court of record: Attorney General v Mirror Newspapers [1980] 1 NSWLR 374 at 381.

When the Coroners Act is considered as a whole in light of the authorities, it appears that coronial proceedings, in a case such as the present, are intended to be conducted:

Furthermore, in coronial proceedings the identification of harm to the public interest if the documents or information are not disclosed does not turn on whether information might or would materially assist one or other of the parties, since there are no “parties” in the usual, adversarial sense. Rather, identification of the relevant harm turns on whether there are or are likely to be documents or information “which contain material which is relevant to the issues raised in the proceedings” to adopt the wording of Hunt CJ at CL in AG v Stuart at 675. The relevant issues in coronial proceedings are described in s 49(1) of the Coroners Act as “the real issues with which the proceedings are concerned” and these must be identified, at a relatively early stage of coronial proceedings, in order for the coroner to be able, for example: to give proper directions under s 49(1) for the speedy determination of the proceedings; to determine under s 66(4) whether a person is not bound to produce documents on subpoena; and, to determine claims for public interest immunity. It would not generally be appropriate or satisfactory for a coroner to refuse to deal with such matters because the “real issues” could not be determined until the end or towards the end of the inquest.

Furthermore, understood in the way set out above, coronial proceedings can be seen as bearing a substantial similarity to other curial proceedings and, since they do not involve an accused person whose liberty is at stake, as more closely analogous to civil proceedings, for the purposes of considering the balancing exercise involved in determining a claim for public interest immunity, even if for no other purpose.

Against that background, I now turn to consider ground 1(a) and (b) and the parts of the Coroner’s reasons relevant to that ground.

The Commissioner’s ground 1(a) and (b) did not generally involve any specific challenge the Coroner’s account of the background to the coronial proceedings or her statement of relevant principles. The main thrust of this ground of review was that her Honour failed to carry out the balancing exercise involved in determining a claim for public interest immunity in accordance with the relevant principles and thereby her Honour erred in law.

The Coroner did not initially set out a statement of the “real issues” with which the coronial proceedings were concerned. Rather, at [57] of her Honour’s reasons, she accepted that “the partially investigative nature of her inquest means that the precise significance a particular piece of information may assume in advance of an inquest is not always easy to discern”.

Nonetheless, the Coroner noted, at [60], that she was required to accord members of the family procedural fairness, citing Annetts v McCann. Her Honour did not, however, note that the High Court held in that case that the family of the deceased had no right to make submissions on the general subject matter of the inquest and that their legal entitlement was confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased.

At [61], the Coroner recorded that :

There followed in [62] and [63] a more detailed list of twelve matters which representatives of Mr McKenzie’s family had indicated they wished to pursue at the inquest and the Coroner then continued, at [64]:

In light of what was said by the majority in Annetts v McCann, it does not appear that this approach of the Coroner to give the family members “every opportunity” to explore any matter they wished to explore was necessarily correct, especially since the matters in relation to which they had a right to make submissions were limited to matters which may be the subject of adverse findings against them personally or against the deceased, as opposed to any aspects of what occurred that interested them. Furthermore, given the nature of coronial proceedings, it was for the Coroner, not the family members of the deceased, to determine the “real issues with which the proceedings are concerned”.

Informed to some extent by the matters which the family members wished to have addressed, her Honour did set out a “draft issues list setting out the issues that it is proposed the inquest would address” which “has been circulated to interested parties”, at [75] as follows:

In the next paragraph, it was noted that this issues list was not determinative, given the investigative nature of the proceedings. It was, however, accepted that it served to provide “an outline of the sorts of matters [the Coroner was] particularly interested in exploring”.

Next the Coroner considered whether the scope of the inquest, being the issues for investigation or enquiry, could be defined in advance, prior to the final hearing of the inquest. In this regard, her Honour accepted, at [79], that:

Further, her Honour stated, at [85]:

Among other comments at [85], it was noted that the issues list identified above indicated the Coroner’s preliminary view that “a wide ranging (although not unlimited) inquest into the police operation that preceded Mr McKenzie’s death will be called for”.

At [88], the Coroner stated that she did not propose to make, “in the abstract and at this preliminary stage”, a finding as to the scope of the inquest, which was another way of referring to the issues for investigation or enquiry. Rather, it was said:

The Coroner also noted at [89] that her consideration was informed by the types of matters Mr McKenzie’s family wish to explore, which have been referred to above, but her Honour accepted that it was ultimately for her to determine what matters should be explored in the course of the inquest.

Although the Coroner was dealing with the scope of the inquest, in the sense of the issues or matters to be explored, there appeared at this point in the reasons, her Honour’s general rejection of the Commissioner’s claim for public interest immunity, at [93], and the reasons for so doing at [90]-[92] and [94], which were in the following terms:

Her Honour’s reasoning essentially involved the following propositions:

The Coroner reasoned in this way, notwithstanding that she had accepted at [68] of her reasons that the test for determining a claim for public interest immunity required:

The Coroner’s reasoning did not involve, and the conclusion at [93] did not depend on:

In short, the reasoning at [90]-[94] reflected a substantial failure to carry out the three-stage process referred to in Alister v The Queen at 412 in accordance with the applicable principles, which have been identified earlier in this judgment. Consequently, the Coroner erred in law in reaching her conclusion at [93] to the effect that the Commissioner’s claim for public interest immunity should be rejected based on the reasoning in [90]-[94].

The fact that coronial proceedings involve an inquisitorial or investigative element does not obviate or dispense with the need to address and carry out, to the extent required, the three stage process identified in Alister v The Queen, when considering a claim for public interest immunity.

In particular, in carrying out the stage of considering whether non-disclosure of the documentation and information in relation to which the claim for public interest immunity would materially harm the public interest in the administration of justice, materiality is not established by showing that the documentation or information “could potentially be relevant” in some undefined way in the proceedings. Rather, whether there will be material harm to the administration of justice because of the non-availability of documents or information depends, in coronial proceedings as in other proceedings, on whether there are concrete grounds to believe that disclosure of the documents or information would, or would be likely to, materially assist in determining one or more of the issues in the proceedings. The Coroner’s reasoning did not address whether the documents or information would materially assist in determining any identified issue in the proceedings and was thus erroneous.

It is no answer to this error to contend that, at the stage reached in the coronial proceedings, the issues could not be determined definitively. As ss 49(1) and 66(4)(b) of the Coroners Act inherently require, the “real issues” may have to be determined by a coroner well before an inquest hearing for the purpose of considering what directions should be made for the preparation and conduct of the proceedings and for the purpose of determining whether production should be ordered under a subpoena. Although the determination of the “real issues” might not be definitive at such a stage, because further or different evidence at a later stage might raise a new issue or dispose of what was previously thought to be an issue, the process of identifying the issues in the coronial proceedings must be carried out when directions under s 49(1) are to be given or a challenge to a subpoena is made. Similarly, if a claim for public interest immunity is made, the issues in the proceedings must be identified for the purpose of determining whether the documents and information in question would materially assist in determining one or more of those issues and thus whether there was material harm to the administration of justice if the documents were not disclosed. Identifying the issues for these purposes is not an impossible task. A coroner’s determination of the “real issues” at a particular time can be made on the basis of the material available to the coroner at that time. Such material would include the material in the coronial brief of evidence, except for the documents or information which are the subject of a clam for public interest immunity or some other valid exclusionary claim, and any other material available to the coroner. If subsequently, other material indicated that other, new issues required consideration, appropriate steps could be taken at that time to obtain further relevant documents or information. Indeed, the Coroner’s identification of various issues earlier in her reasons demonstrated that it was possible to identify issues in the proceedings at that stage.

Furthermore, the fact that an initial assessment by police assisting the Coroner with the coronial proceedings assessed documents or information as having potential relevance did not establish the degree of materiality required in order to show that non-disclosure of the documents or information will prejudice the administration of justice to the extent required to engage the requirement to conduct the balancing process.

It must be noted, however, that despite the conclusion stated in [93], this part of her Honour’s reasons did not otherwise purport to be a ruling in relation to specific types of information for which the Commissioner claimed public interest immunity. This was considered later in her reasons. Nonetheless, to the extent that the Coroner’s reasoning at [90]-[94] represented the substance of her reasoning to support the decision to reject all the Commissioner’s claim for public interest immunity, that decision was affected by legal error, as identified above.

The next relevant part of the Coroner’s reasons concerned the legal issue of “the significance, to the relevant balancing exercise … of the various alternatives available to a Court to making a public interest immunity declaration” (at [99] of her Honour’s reasons). The relevant alternatives considered in this context were suppression, non-publication or restricted access orders, referred to a “tailored orders”. The applicable principles in relation to tailored orders have been set out above.

In this regard, at [104], the Coroner accepted that in undertaking a balancing exercise of the type called for when determining an application for public interest immunity, she should have regard to the possibility of making tailored orders and concluded at [104]-[105]:

From [105], it appears that the Coroner was alive to the potential error, identified in The Australian Statistician at [45], of concluding that there would be no harm to the public interest by disclosure of the documents or information if they were subject to disclosure limitations by appropriate “tailored orders” and, as a result, not carrying out the balancing exercise at all. There were, however, problems with her Honour’s reasoning in [105]. The balancing exercise such as it was envisaged in that paragraph involved weighing, on the one hand:

Once again, in my view it was an error to treat the relevant harm to the administration of justice by non-disclosure as being established merely by the “possibility” of prejudice in that the Coroner might be deprived of the ability to consider information that “might assume some relevance” to her finding or recommendations. Such an approach to the harm to the public interest flowing from non-disclosure involved a failure to address the correct question which was whether the disclosure of the documents or information would materially assist in determining one or more of the issues in the proceedings so that non-disclosure of the documents or information might amount to relevant harm to the public interest. This type of error was repeated on each occasion when her Honour rejected the Commissioner’s claim for public interest immunity in respect of particular categories of information on the basis that the information may be potentially or conceivably relevant rather than that it would materially assist in determination of the issues in the proceedings.

In addition, while her Honour identified “the need to preserve confidentiality” she did not expressly identify the gravity of the harm to the public interest supporting non-disclosure, if disclosure occurred without any tailored orders, including whether there was a real possibility, as opposed to a probability, of harm to the public interest from disclosure on the basis that the incurring of the identified risk of harm was itself injurious to the public interest. This type of error was also repeated on each occasion when the Coroner rejected a claim for public interest immunity in respect of specific information.

Moreover, the balancing exercise at [104]-[105], such as it was, involved accepting that “the potential … to make tailoring orders over the information” was a powerful consideration against upholding a claim for public interest immunity apparently on the basis that “[i]f such orders were effective to protect the confidence of that information, it is hard to see how any harm could arise were exclusionary orders [upholding the claim for public interest immunity] not to be made”. This latter proposition amounted to an uninformative tautology, namely: if the tailored orders are effective, they are effective; it did not establish that tailored orders would actually be effective.

The error in this aspect of the Coroner’s reasoning was that she did not engage in any consideration of the correct questions, namely, would the tailored orders be likely actually to reduce significantly the harm to the public interest from disclosure and, if so, to what extent. In that regard, the relevant matters that would have been required to be considered included that:

Furthermore, in the balancing exercise, the Coroner would have also been required to consider the harm that tailored orders would be likely to cause to the public interest in the administration of justice as a result of:

The reasoning at [104] and [105] concerning tailored orders as part of the balancing exercise carried out in determining the Commissioner’s claims for public interest immunity was, in substance, relied on by the Coroner when determining the specific claims for public interest immunity later in her reasons. At no point was the actual likely effectiveness of the tailored orders in eliminating or significantly reducing the harm from disclosure or their potential to lead to increased harm to the administration of justice considered. As a result, the Coroner did not carry out the balancing exercise as required and this type of error affected each specific decision to reject the claim for public interest immunity based on the availability of tailored orders.

Having reached the conclusions at [93] that she was “unable to accede to [the] request [by] the Commissioner that certain information be excluded” and at [105] that “the potential … to make tailoring orders over the information … to be a powerful consideration against the making of such an [exclusionary] order”, the Coroner then turned to consider the public interest immunity application in relation to specific categories of information.

Her Honour noted the evidence in support of the Commissioner’s application by way of one open and three confidential affidavits of an Assistant Commissioner of Police and it was expressly recorded, as was appropriate, at [109] that this evidence was approached with due respect for the deponent’s status.

As to the harm to the public interest from disclosure of the documents and information, her Honour accepted the “utmost seriousness” of the risks inherent in their disclosure. At [110]-[111], the Coroner said:

Notwithstanding the qualification inherent in [111], it is clear that her Honour in [110] effectively found that the risk of harm from disclosure of some of the documents and information which were the subject of the public interest immunity application was sufficient to satisfy the first stage in the three stage process described by Gibbs CJ in Alister v The Queen and set out earlier in this judgment.

The Coroner then identified a number of difficulties she experienced in considering whether there was any risk of harm as a result of disclosure of specific information and concluded, at [117], as follows:

In a number of instances, the Commissioner did not challenge the Coroner’s rejection of the Commissioner’s claim for public interest immunity on the basis that disclosure of particular information did not involve a risk of harm to the public interest. In relation to other material where there was a relevant risk of harm, the opportunity to identify the information referred to in [117] was provided in orders 22-24 made by the Coroner.

In the Coroner’s reasons, [118]-[224] were redacted as they dealt in some detail with some of the information in relation to which suppression and non-publication orders were made. The different types of information considered were identified in headings to various sections of the reasons – see, for example, the type of information identified in heading before [120].

As noted above, in this judicial review application the Commissioner did not challenge all of the rulings of the Coroner.

The application for public interest immunity in respect of the type of information identified in the heading before [120] was considered in [120]-[143].

There was no challenge by the Commissioner to the Coroner’s rulings in relation to the information that was dealt with in [120]-[125]. Consequently, it is unnecessary to consider further the material referred to in those paragraphs.

In each of [126], [127], [128], [129] and [130], specific types of information were identified by the Coroner and a number of findings were made.

As to the information referred to in [126], it was found that, for the reasons set out in the second confidential affidavit of Assistant Commissioner Walton, that the information “has a character of confidentiality” and “some form [of] protective orders is appropriate in respect of information that truly falls within that category”. Although it is not entirely clear, it appears that “a character of confidentiality” was intended to refer to what her Honour had said earlier concerning confidentiality at [72] namely that information is “confidential” if it “will be ‘useful’ to a criminal or would be ‘prejudicial’ to future police activities”. It therefore appears that where the Coroner accepted that information was “confidential”, this was intended to convey that the information related to sensitive police methodologies, capabilities, resources, policies or procedures disclosure of which would involve harm to the public interest in detection and prevention of crime and in maintaining the safety of the community and individuals.

As to the information referred to in [127], “[f]or similar reasons”, her Honour found that some of that information “should be protected by some form of orders” and other aspects of the information referred to in [127] “should attract some form of protection”.

As to the information described in [128], her Honour concluded, “[f]or much the same reasons, … [disclosure of] any information … [as described in [128]] would be harmful [to the public interest] in that they could be deployed to the detriment of future police operations. I will make protective orders in respect of that information”.

As to the information referred to in [129], only in relation to a limited, specified part of that information did the Coroner reach the conclusion that it “should be protected”.

As to the information identified in [130], it was accepted by the Coroner that a certain, specified part of that information would enable relevant conclusions to be drawn and “[a]s set out later in these reasons” the Coroner proposed to “make suppression orders in respect of that information (and information of a similar kind to it)”.

From the words used by the Coroner and the context, it appears that in each case where her Honour found that some form of protection was required, her Honour had accepted that the information was “confidential” in the sense that the information related to sensitive police methodologies, capabilities, resources, policies or procedures disclosure of which would involve harm to the public interest in detection and prevention of crime and in maintaining the safety of the community and individuals.

The Coroner then turned to consider, at [131] and following, whether the appropriate form of protection should be by way of:

If the reference to “a tailoring order of the type described in HT” was intended to convey that the High Court in HT v The Queen had held that tailored orders were part of public interest immunity procedures that may not be entirely apt. In HT v The Queen, Kiefel CJ, Bell and Keane JJ held, at [32]:

Further and in any event, the proper role of tailored orders in determining an application for public interest immunity has been set out above, by reference to what was said by the Western Australian Court of Appeal in The Australian Statistician at [41]-[54], which is consistent with HT v The Queen.

Her Honour then concluded, at [137], that the claim for public interest immunity in relation to each of the types of information should be rejected and that other protective orders should be made in respect of the information falling within [126]-[128] of her reasons. It appears that the information identified in [129] and [130] was seen as a subset of information referred to in the earlier paragraphs and thus was not separately referred to in [137]. The reasoning in this regard and conclusion included:

The essence of the Coroner’s reasoning in relation to this information can be summarised as follows:

Thus, the balancing exercise described at [132]-[137], in relation to the information in [126]-[128], involved balancing:

It can be seen that this reasoning involves the errors of law identified above in relation to earlier passages from the Coroner’s reasons. It is sufficient here to identify the following problems.

First, when considering the harm to the administration of justice of non-disclosure, the Coroner did not identify relevant respects in which the administration of justice would be harmed if the information was not disclosed or the nature and extent of that harm. This would have required her Honour to identify the relevant issues and consider whether it had been shown that the documents or information were or were likely to be material in the relevant sense. This did not occur because the real issues in the proceedings were not referred to and considered at this point in her Honour’s reasons and harm from being deprived of merely “conceivably” or “potentially” relevant information, even in some way which could not then be predicted, was accepted as being the relevant integer to be weighed in the balancing process. The authorities referred to earlier in this judgment establish that harm from non-disclosure of “potential” or “conceivable” relevant information is not what is required to be weighed. What is to be weighed is the nature and extent of the harm to the administration of justice from non-disclosure where there are concrete grounds to believe that disclosure of the documents or information would, or would be likely to, materially on the issues in the proceedings.

Secondly, when dealing with the harm to the public interest if the information identified in [126]-[128] was disclosed, her Honour did not first identify the actual nature and extent, or gravity, of the risk of harm to the public interest in effective policing and community and individual protection which would or might flow from disclosure of the information without orders limiting access to or disclosure of the information, as required by the principles identified above.

Thirdly, when weighing the competing public interests, her Honour did not consider the extent to which the gravity of the risk harm to the public interest supporting non-disclosure might or might not actually be reduced by tailored orders. It appears that the Coroner proceeded on the basis stated in [104] that, “[i]f such orders were effective to protect the confidence of that information, it is hard to see how any harm could arise were exclusionary orders not to be made” assuming, without further justification or consideration, that such orders would be effective to eliminate any relevant harm or risk of harm. Relying on such an unsupported assumption involved error of law.

Fourthly, her Honour took into account in the balancing exercise that excluding the “conceivably relevant information” would compromise the interested parties’ rights to procedural fairness. This was erroneous because excluding information on the ground of public interest immunity has the consequence that it is not available to the decision maker or to any party or interested person, thus, there can be no denial of procedural fairness in any relevant sense, as explained in HT v The Queen, which has been referred to above.

Finally, her Honour did not consider the nature of the proceedings and what effect that might have in relation to the balancing process. Significant matters in this regard included: the fact that these were proceedings were not criminal in nature and did not involve the liberty of the subject; the fact that the recommendations function of a coroner is secondary to the function of determining the manner and cause of death; and, one of the functions of coronial proceedings being to inform the public in relation to the manner and cause of death, especially where an inquest is mandatory, rather than to conduct a discursive inquiry into any possible causal connection, no matter how tenuous, between an act or omission or circumstance and the death of the deceased.

The Coroner next considered whether the tailored orders to be made in respect of the information in [126]-[128] should restrict access so as to deny the information to the interested family members of Mr McKenzie. At [138], her Honour concluded that “for procedural fairness reasons, the family should have as much of the information as possible”. Consequently, the Coroner said that her tailored orders would permit the interested family members to view the material remotely via shared screen and she was of the opinion that the safeguards to be built into the orders would provide an appropriate level of protection in relation to this information. This approach of permitting the interested family members to have “as much information as possible” indicated that the Coroner’s attention had not been drawn to, and her Honour did not as a result consider, the limitations on the requirement to afford procedural fairness to relatives of the deceased to matters which may be the subject of adverse findings against them personally or against the deceased, established in Annetts v McCann as referred to above. Furthermore, no apparent consideration was given, as part of the balancing exercise, to the increased risk of harm to the public interest supporting non-disclosure if the information was made available to family members as her Honour decided.

In the respects identified above in relation to the balancing process described in [132]-[137] and the extent of disclosure to be permitted in [138] of the Coroner’s reasons, I am of the view that her Honour erred in law in making the decision to reject the Commissioner’s application in relation to the relevant information identified in [126]-[128] (including the information referred to at [129]-[130]). This view is confirmed by the fact that the reasoning in [132]-[137] is in substance a specific application of the Coroner’s general form of reasoning for rejecting all the public interest immunity claims at [93] and her conclusion at [105], which I have already found to have involved similar errors of law.

The type of information identified in the heading before [144] was considered in [144]-[172].

There was no challenge by the Commissioner to the Coroner’s rulings in relation to the type of information that was referred to in [144]-[159]. Consequently, it is unnecessary to consider further the material referred to in those paragraphs.

This aspect of the Coroner’s reasoning involved two types of information, namely that identified in [160] and that identified in [166].

The Coroner found that if information identified in [160] was disclosed, it “might be useful to the hypothetical subject of a future police operation and/or to be to the prejudice of such future police operations”. Nonetheless, while her Honour was satisfied that she should make protective orders in respect of that information, the Coroner rejected the claim for public interest immunity at [161]. The reasons for doing so were stated as follows:

At [167], the Coroner accepted that the category of information described in [166] was “sensitive” and that, in effect, disclosure of that information could cause prejudice to a hypothetical future operation in a manner which increased the risk to officer safety. For that reason, her Honour was satisfied that this information was deserving of a higher level of protection than a mere non-publication order. This indicated that, to some extent, the Coroner had considered the gravity of the harm to the public interest from disclosure.

Her Honour then, in effect, rejected the public interest immunity claim in relation to that information on the following basis:

In relation to both categories of information identified in [160] and [166], the reasoning was in substance the same as earlier reasoning by her Honour and involved essentially the following steps:

Given the similarity of the reasoning in [162]-[165] and [168]-[169] to that which was relied upon by the Coroner at [132]-[138], it is unnecessary to repeat what has been said earlier in any detail. It is sufficient to observe that, for essentially the same reasons given above in relation to [93], [104]-[105] and [132]-[138], the reasoning in relation to the information identified at [160] and [166] involved the same types of errors of law. Given that the information was only found to be “potentially” relevant, this was insufficient to give rise to the type of harm to the administration of justice which is to be weighed as one integer in the balancing exercise. Moreover, the balancing process carried out in order to determine which public interest should predominate was not in accordance with applicable principles for essentially the same reasons, especially concerning tailored orders and procedural fairness, given above in relation to other conclusions of the Coroner that claims for public interest immunity should be rejected.

Accordingly, in my view, her Honour’s rejection of the Commissioner’s claim for public interest immunity in respect of the information referred to in [160] and [166] involved the same errors of law as have been identified previously in this judgment.

The type of information identified in the heading before [184] was considered in [184]-[196]. The challenge under ground 1 concerned the information referred to in [185] in relation to which the Coroner rejected the claim for public interest immunity but ruled that there should be a suppression order, in [185] to [190]. The information referred to at [194] is the subject of the challenge under ground 3(b) and will be addressed when that ground is considered below. The other paragraphs in this section of the Coroner’s reasons do not require further consideration.

At [185], the Coroner in effect accepted that disclosure of the specific information identified in that paragraph had “the potential to result in harm to future police operations”. It was then stated in that paragraph:

In the following paragraphs her Honour set out her reasoning in relation to rejection of the claim for public interest immunity as follows:

It was then reiterated, at [189], that suppression orders were to be made in respect of this specific information and, at [190], it was concluded that family members of Mr McKenzie should be permitted to have access to this material because they had expressed a particular interest in that information.

In relation to the specific information identified in [185], the reasoning was similar, in some respects, to earlier reasoning by her Honour in that it involved essentially the following steps:

It was dissimilar in that there was no express consideration of whether, notwithstanding the fact that disclosure had “the potential to result in harm to future police operations”, the information was “not so confidential” (to use the Coroner’s expression from earlier in her reasons) that it could not be adequately protected by suppression orders.

Once again, this reasoning involved errors including:

Thus, the reasoning in [186]-[188] involved the same types of errors as have been identified earlier in this judgment in relation to the rejection of the public interest immunity claims concerning other documents and information.

Further, the particular relevance of her Honour’s reference at [185] to the judgment of Beech-Jones J in Yufeng Mao v Commonwealth of Australia [2012] NSWSC 370 (Yufeng Mao) to the reasoning was not at all clear. That case concerned an application based on s 130 of the Evidence Act 1995 (Cth) by the Commissioner to exclude certain documents from production on subpoena, although it was common ground in that case that the balancing process under s 130 was not for the purposes of that case relevantly different from the balancing process described in Alister v The Queen. His Honour’s judgment, which was delivered on the same day as the hearing, disclosed why and how the balancing process was carried out. It included the following in relation to one type of document:

In relation to another type of document, Beech-Jones J said:

It can be seen that, in each case, his Honour succinctly identified the nature and extent of the harm to the public interest supporting non-disclosure and the strength of the need for protection from disclosure, although in the second case it was held that the quantity of material disclosed was not as significant as in the first case. Next, the nature and extent of the harm to the public interest in the administration of justice from non-disclosure was identified. In one case, it was found that the subpoena had a “legitimate forensic purpose” which meant that it had been shown that the documents sought to be produced were or were likely to of material assistance in determining an issue in the proceedings. In the other case, it was said that the information had much greater significance to the case than the first type of information. In each case, the competing aspects of the public interest were then weighed and in one case public interest immunity was upheld and in the other it was rejected with limited disclosure.

The judgment in Yufeng Mao provides no support whatsoever for the proposition that relevant harm to the administration of justice would result from being deprived of information that had mere potential or conceivable relevance to proceedings and amounted to the integer which should be weighed against the risk of harm to the public interest in the prevention of crime and the protection of the community and individuals from disclosure. Nor does it support the conclusion that the potential or conceivable relevance of information to proceedings could be sufficient to justify the rejection of a claim for public interest immunity in respect of that information.

The judgment also demonstrates that, even in a case where a legitimate forensic purpose for production of the information was established, protective orders limiting disclosure to counsel and solicitors may not be sufficient to lead to the public interest in disclosure outweighing the public interest in non-disclosure. It is of some significance that, in Yufeng Mao, the documents in relation to which the claim for public interest immunity was upheld were similar to some of the documentation in the present case and this type of documentation was held to be “so significant that those who prepare and utilise the documentation need to have some assurance that the extent to which it is disseminated is a matter within their control” and thus, even the imposition of tailored orders would not be sufficient to tip the balance in favour of rejecting the public interest immunity claim.

To the extent that it might be of assistance in the present case, in my view, Yufeng Mao confirmed that the Coroner’s approach to the three stage process which ought to have been undertake in the present case involved errors of law, some of which have been identified above.

For these reasons, I formed the view that the Coroner made errors of law when deciding to reject the public interest immunity claim in respect of the relevant information identified in [185].

The type of information identified in the heading before [197] was considered in [197]-[199].

At [197], the Coroner accepted that, were the information identified in that paragraph to be disclosed, “it is possible that the hypothetical person the subject of future police operations could take steps … to the prejudice of future police operations”.

Her Honour’s reasons for rejecting the claim for public interest immunity in relation to that information were as follows:

In [199], it was held that some of the information in document 221 would not be the subject of any form of orders.

For the reasons already identified above in relation to the rejection of other claims for public interest immunity, the reasoning in [198] involved the same types of errors. In short, the fact that the information was “capable of assuming relevance” in the coronial proceedings did not establish the type of harm to the administration of justice flowing from non-disclosure that was required to be weighed in the balancing exercise. The effect of tailored orders was assumed, without justification or consideration, to be such as to eliminate, totally or largely, the risk of harm to the public interest supporting non-disclosure. The requirement to afford procedural fairness was mistakenly thought to be adversely affected by upholding the claim for public interest and, in relation to the effect of tailored orders, procedural fairness was not considered by reference to identified issues in relation to which such a duty was owed.

Accordingly, the Coroner’s decision to reject the Commissioner’s claim for public interest immunity in relation to the information identified in [197] was affected by legal error.

The type of information identified in the heading before [200] was considered in [200]-[201].

At [200], the Coroner accepted that there was a need for information of the type described in [200] “to be protected”. Her Honour then continued in that paragraph:

At [201], it was noted that for these reasons, the information was made subject to a non-publication order rather than a suppression order.

Although the information in the information identified in [200] was not described as being “potentially” relevant but rather was found to be “important to give context to the oral evidence witnesses might give”, it does not appear to me that this amounts to a finding that the information had the degree of materiality in the coronial proceedings to justify a conclusion that there would be the type of harm to the administration of justice which was to be one of the integers weighed in the balance exercise involved in determining a claim for public interest immunity. In other words, it was not found that the information would or would be likely materially to assist the determination of the issues in the proceedings.

Furthermore, for essentially the same reasons as have been set out above in relation to claims for public interest immunity in respect of other information, the reasoning in [200] did not involve identification of the nature and extent of the relevant harm to the public interests or balancing of those integers in accordance with the relevant principles. The actual likely effectiveness of tailored orders was, once again, assumed without any justification or consideration.

As a result, in my opinion, the Coroner’s effective conclusion that the public immunity claim in relation to the information identified in [200] should be rejected was based on essentially the same types of legal errors as have been identified above.

There is no challenge under ground 1 to the orders made in relation to the types of information identified in the headings before [202], [203] and [208] and, as a result, these paragraphs relating to these types of information do not require further consideration.

The type of information identified in the heading before [210] was considered in [210]-[214]. That type of information related to a particular category of persons. The Coroner rejected the claim for public interest immunity in relation to this type of information at [210] and explained her reasoning as follows:

In this instance, the express reasoning appeared simply to be that since the Coroner could not positively find that the material could not be relevant and since a suppression order could be made, the claim for public interest immunity should be rejected. Otherwise, the Coroner appeared to rely on her earlier reasoning in relation to information of the same nature to justify her conclusion.

There was no express identification of the nature and extent, or gravity, of the risk of harm to the public interest supporting non-disclosure of the information.

Furthermore, it was found that, given the relevant definition of the particular category of persons, it was unlikely that Mr McKenzie would fall within that definition. This amounted in substance to a finding that the information was unlikely to assist materially in the determination of any issue in the inquest. It follows from such a finding that non-disclosure of this information did not involve the type of harm to the administration of justice which would give rise to a requirement to conduct the balancing exercise. The harm from non-disclosure of information unlikely to be of material assistance was not one of the integers to be weighed if the balancing exercise undertaken. The fact that the information could not be positively found to be irrelevant at the present time was clearly insufficient to establish that non-disclosure involved a relevant type of harm to the administration of justice.

Once again, there was no express consideration of the extent to which tailored orders might actually reduce the harm to the public interest supporting non-disclosure, it being implicitly assumed that the harm would be totally or largely eliminated by such orders, without any justification or consideration. In so far as the Coroner also relied on her earlier reasoning, the errors in that reasoning affected her conclusion in this instance.

For these reasons, I accepted that the Coroner’s rejection of the claim for public interest immunity in respect of the information identified at [210] involved errors of law of the same types as have been identified above in relation to similar earlier conclusions by the Coroner.

When the relevant parts of the Coroner’s reasons are read fairly as a whole, I am satisfied that her Honour erred in law in deciding to reject the claims for public interest immunity in respect of the contested information identified in the paragraphs of her reasons referred to above. In summary, it was an error of law on the part of the Coroner, in respect of one or more of the specific rulings:

As a consequence of those errors, the Coroner failed to carry out the balancing exercise as required by law in respect of each determination that the Commissioner’s claim for public interest immunity in respect of the contested information should be rejected.

For these reasons, in my view the errors of law in ground 1(a) and (b) have been made out.

Particular (c) to the first ground of review raised, in effect, the discrete issue of whether the Coroner proceeded on a misunderstanding of the Coroners Act, and thus fell into legal error, by reasoning that the principles of open justice assumed even greater significance in coronial proceedings than in other curial proceedings.

The Commissioner contended that there was nothing in ss 65 or 79 of the Coroners Act to suggest that open justice played a greater role in coronial proceedings compared to other types of proceedings. A contrast was drawn with what was said to be the more stringent provisions of the Court Suppression and Non-publication Orders Act 2010 (NSW). In substance, it was submitted that, to the extent that the Coroner carried out some balancing of the public interest in non-disclosure of the contested information and the public interest in disclosure of that information for the purposes of the inquest, the latter interest was given inordinate weight.

The Attorney General submitted that publicity of proceedings was particularly important in the coronial context, citing Bilbao v Farquhar [1974] 1 NSWLR 377 (Bilbao) at 387, referring to the requirement for an inquest in cases of deaths as a result of police operations and noting that coronial proceedings should generally be open. In substance, it was said that her Honour’s comments concerning the particular significance of open justice in coronial proceedings were a recognition of these matters. Further, it was submitted that, in any event, the Coroner did not reason that an otherwise strong claim to public interest immunity was trumped by an overriding importance of open justice particular to coronial enquiries and thus this aspect of ground 1 went nowhere.

Her Honour expressly accepted at [65] of her reasons that “the very point of this jurisdiction is to cast public light on issues” citing Bilbao at 388, and continued, at [65]-[67]:

The relevant part the judgment of Bowen JA in Bilbao at 388 D-E appeared to me to be the statement as to the purposes underlying coronial proceedings. These were said to be “the satisfaction of the legitimate concerns of relatives; the concern of the public in the proper administration of institutions, gaols and the care of persons in custody and the like”. This comment was made while his Honour was identifying potentially relevant considerations which might be taken into account when a coroner was deciding whether to resume an inquest after committal proceedings or a trial. It was expressly noted that, in such a case, relevant consideration included, in addition to the purposes underlying coronial proceedings that:

The 1975 Report of the Law Reform Commission on the Coroners Act, 1960, [1] in the course of considering the value, and the proper or desirable role, of a coronial inquest in relation to matters in which no criminality was involved including fatal accidents, included, at p 98, the following:

This is consistent with comments of Bowen JA and can be seen as being reflected in various provision of the current Coroners Act including in the objects in s 3(c) and (e) (which have been quoted above), and the general principle that coronial proceedings should be open to the public as referred to in ss 47, 65(3) and 74(2).

The statement of the Law Reform Commission appeared to me to be a useful statement of the role of coronial proceedings in informing the public of matters relevant to deaths in cases such as the present. In light of those matters, it can be accepted that the principles of open justice assume a degree of significance in coronial proceedings.

Making a fair or useful comparison of the significance of the principles of open justice in coronial proceedings with their significance in criminal or civil proceedings involves very significant difficulty. It is beyond dispute that the principles of open justice play a very significant role in criminal proceedings. In addition, many civil proceedings involve the vindication of public rights, the enforcement of public duties and the ventilation of other issues of public importance going well beyond the resolution of disputes between private parties as to their private rights. In these circumstances, I am of the view that no proper conclusion can be reached that open justice principles generally play a more significant role in coronial proceedings compared to criminal or civil proceedings. This is not, however, what I believe the Coroner was attempting to convey at [65]-[67] of her reasons.

At [66], her Honour said, “I find that principles of open justice assume a very particular significance in the present application.” It appeared to me that her Honour referred to the principles of open justice especially as they apply so as to promote the function of coronial proceedings in informing the public, through an impartial inquirer, of the broad facts relating to the manner and cause of death of the deceased and any appropriate recommendations. So understood, her Honour’s view was open to her Honour, especially given the circumstances which led to the inquest being mandatory in this case. Such a view did not involve any misunderstanding or error. Very significantly, her Honour did not say, as the Commissioner contended, that the principles of open justice assumed “even greater significance in coronial proceedings than in other curial proceedings”. In addition, the Coroner did not say that this consideration caused or contributed to her conclusion that the claims for public interest immunity should be rejected. On these bases, there did not appear to me to be any relevant misunderstanding or error in her Honour’s reasons at [65]-[67].

Nonetheless, it ought to be observed that in coronial proceedings, as in other proceedings, upholding a claim for public interest immunity does not lead to any curtailing of the principles of open justice in relation to the evidence or the substantive hearing. Similarly, rejecting a claim for public interest immunity does not necessarily involve the principles of open justice being curtailed, except to the extent that tailored orders are made and have such an effect. In coronial proceedings, tailored orders may inhibit a coroner’s ability to perform the function of informing the public of the circumstances of the deceased’s death and of appropriate recommendations. Whether and to what extent these considerations should be taken into account in the balancing process is a matter that depends on the particular circumstances of each case.

For the reasons set out above, on my understanding of the Coroner’s comments I do not accept that ground 1(c) has been made out.

Although I have not accepted that the first ground of review has been made out in respect of particular (c), I have concluded that the Coroner’s decision to reject the Commissioner’s claim of public interest immunity in respect of the contested information was based on errors of law, as contended under ground 1(a) and (b).

These errors of law are disclosed in the Coroner’s reasons for the decision.

Section 69(1) of the Supreme Court Act 1970 (NSW) confirms that the Court has jurisdiction to grant relief or a remedy in the nature of a writ of certiorari or mandamus by making appropriate orders. Further, subs (3) and (4) of that section provide:

Accordingly, this Court’s jurisdiction includes jurisdiction to grant relief in the nature of a writ of certiorari, where it is satisfied that the “ultimate determination” of a court in proceedings has been made on the basis of an error of law on the face of the record and the “record” includes the court’s reasons for that determination.

If s 69(3) and (4) do not apply, however, the “record” for the purposes of certiorari in respect of decisions of a coroner’s court ordinarily would not include the reasons for decision and would comprise “no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the [inferior court], the pleadings (if any) and the adjudication”: Craig v South Australia (1995) 184 CLR 163 at 181, 182 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58.

In Telstra Corporation Limited v Attorney General for New South Wales [2021] NSWSC 1521, a similar case to this in that it concerned judicial review of a coroner’s decision refusing to make orders for the non-disclosure, by publication or otherwise, of information identifying certain persons, Beech Jones J held that s 69(4) applied and the record in that case included the coroner’s reasons. His Honour did not, however, expressly deal with the issue of the proper construction of the words “ultimate determination” in s 69(3) and (4).

The expression “ultimate determination” may refer to the final disposition of the whole of the proceedings before the court in question. Alternatively, it may refer to the ultimate determination of an application made in proceedings in the court whereby the particular rights or interests of the person making the application are finally determined.

The parties did not make detailed submissions on the proper construction of the expression “ultimate determination” in s 69. The Commissioner proceeded on the basis that the Coroner’s reasons were part of the “record”. Mr Herzfeld of senior counsel, who appeared with Mr Wherrett for the Attorney General, submitted:

Given the positions adopted by the parties effectively accepting for the purposes of these proceedings that the “record” included the Coroner’s reasons and the absence of submissions on the issue, it is not necessary or appropriate to reach a final view as to the proper construction of the words “ultimate determination” in s 69(3) and (4). Nonetheless, I note that s 69(3) does not refer to the “ultimate determination … of any proceedings” (underling added) but rather the “ultimate determination of a court … in any proceeding” (underlining added). This forcefully suggests that the “ultimate determination” may include final determinations made in proceedings that do not amount to a final determination of the proceedings. If I were required to reach a concluded view on this issue, I would favour the view that a decision of a coroner’s court which finally determined an application by a person, such as the Commissioner, to have documents or information preserved from disclosure on the ground of public interest immunity amounted to the ultimate determination by a coroner’s court, in proceedings, of that application and thus such a determination would fall within the meaning of the words “the ultimate determination of a court … in any proceedings” in s 69(3).

In the circumstances, I have proceeded on the basis adopted by the parties that the Coroner’s reasons form part of the record in this matter. Consequently, the Coroner’s decision to reject the Commissioner’s claim for public interest immunity in respect of the contested information identified in the red cells in Schedules A and B to the summons was made on the basis of errors of law on the face of the record and is liable to be set aside to that extent. As a result, it is not necessary to consider whether the Coroner’s decision in this regard also involved jurisdictional error.

The Court has a discretion whether or not to grant relief under s 69 of the Supreme Court Act: Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [121] (Sackville AJA, Leeming JA and Adamson J agreeing). Given the potentially serious nature of the harm to the public interest which might flow from disclosure, even limited disclosure, of the contested information and the fact that the matter can be remitted to the State Coroner or a Deputy State Coroner, if relief is granted, so that the application can be properly considered according to law, it appeared to me that relief by way of an order in the nature of certiorari should be granted in the present case setting aside the Coroner’s decision in respect of the relevant contested information identified in the red cells in Schedules A and B to the summons. In addition, an order in the nature of mandamus should also be made remitting the Commissioner’s claims for public interest immunity in relation to that contested information to the State Coroner or a Deputy State Coroner to be dealt with according to law.

The second ground of review related to the Coroner’s refusal to make any suppression, non-disclosure or restricted access orders protecting information contained in Amended Revised Schedule A relating to “triggers”, in that the information tended to identify certain circumstances that might trigger specified responses by certain types of persons. The Coroner was said to have refused to make such orders despite making those types of orders in relation to the same, or similar, information contained in Amended Revised Schedule B. The contention was that such a refusal in the circumstances amounted to acting “irrationally or illogically, thereby erring in law or falling into jurisdictional error”.

The paragraphs of the Coroner’s reasons relevant to ground 2 were [189], [216]-[217] and [225]-[229] and the relevant documents were those in:

In considering this ground of review, it was important to bear in mind that the challenge was to the failure to make suppression or non-disclosure orders in respect of the information in question. The second ground of review did not involve a challenge to the inclusion of this information in the coronial brief of evidence.

The Commissioner submitted that the Coroner’s approach to information relating to triggers at [226] and [229] of her Honour’s reasons was irrational or illogical having regard to the approach taken to essentially the same or similar information at [189] and [216]. It was contended that, in the earlier paragraphs, it was concluded that the information should be protected by way of suppression orders on the basis that it “set out a particular generalised methodology that police are to follow in cases of this kind”, as mentioned at [228]. In view of that reasoning, the Commissioner submitted that the Coroner should have made the same type of suppression order in respect of other, similar information which disclosed that certain action was triggered in the circumstances where such action reflected the “standard or common practice” followed.

The Commissioner further submitted that the Coroner’s indiscriminate rejection of the suppression orders in relation to the trigger information exposed further illogicality or irrationality in that the Coroner failed to consider whether the disclosure of the information relating to triggers created the risk of adverse consequences or harm, which her Honour had already accepted flowed from disclosure of other, similar information at [189] and [216].

The Attorney General submitted that the relevant test for illogicality or irrationality was that the reasoning must have been so irrational that no reasonable person could have engaged in it, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

It was then submitted that the Coroner had held that only information that disclosed the general responses to a relevant trigger should be the subject of a tailored order. More particularly, the Attorney General submitted in effect that the Coroner was not satisfied that information that only disclosed that a certain trigger would lead to a particular response, without identifying that response, or that disclosed a response to a particular instance should be protected by tailored orders and this involved no irrationality.

It was noted that the Coroner had only been invited to consider particular documents, and not the contents of all the documents, and to determine the claims on the basis of certain, limited descriptions. Having regard to that approach, it was submitted that the conclusions reached were open to her Honour in the circumstances.

In addition, the Attorney General effectively submitted that, even if, on the approach adopted by the parties and her Honour, there were some underlying documents that were missed or that, upon review, should have been considered to disclose general responses or methodology, then this still would not demonstrate error. Rather, it was submitted that any such matters should be re-agitated with the Coroner by drawing it to her Honour’s attention.

Both parties in effect accepted that, for the purposes of this judicial review application and ground 2, error of law or jurisdictional error could be established if the Coroner’s decision was one at which no rational or logical decision maker could arrive on the material before her: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130], [135] (Crennan and Bell JJ).

The essence of the illogicality and irrationality relied upon by the Commissioner in relation to the second ground of review was that the outcome in respect of two types of information which were said to be materially indistinguishable in terms of the harm likely to flow from disclosure should logically and rationally have been the same. Thus, there was no logical or rational basis for the Coroner making suppression orders in one case and refusing to make any protective orders in the other.

The two relevant types of information were:

It appears that the Sch B Trigger Information and possibly also the Sch A Trigger Information was dealt with by the Coroner in her reasons at [216] and [217] where it was said:

Notwithstanding that the Coroner apparently dealt with both the Sch A Trigger Information and the Sch B Trigger Information at [216], her Honour also dealt separately with the Sch A Trigger Information later in her reasons as follows:

The Commissioner took me to certain of the Sch B Trigger Information which set out generalised police methodology and in relation to which a suppression order was made because of the harm that might result from disclosure. I was also taken to extracts of material from the Sch A Trigger Information, for example the material at line 405 of Schedule A to the summons, which was before the Coroner in Ex A tab 43 in the first yellow cell on p 807. It was submitted that part of this information at least related to what was done “normally”, and thus amounted in effect to information as to generalised police methodology similar to that in the Sch B Trigger Information. The Commissioner relied on other examples of Sch A Trigger Information which related to what was done “usually”, “often” or “by anyone” or to “actions in response to an act … [t]hat may include [various types of act]” (including the items identified in the note dated 19 April 2022 provided by the Commissioner after the hearing, by leave of the Court). It can be noted, however, that in so far as it was possible to tell from the short extracts provided in the schedule, most of the Sch A Trigger Information was given in answer to questions relating to the specific incident and not in response to questions concerning generalised police methodology. The Sch A Trigger Information referred to in document 173, pars 21 and 33-35, of the schedule could not be identified from what was contained in the schedule itself.

In my view, [228] of the Coroner’s reasons sets out a logical basis for distinguishing between the Sch A Trigger Information and the Sch B Trigger Information. What the Commissioner’s submissions in relation to ground 2 drew attention to was not illogicality or irrationality in the reasons but rather the possibility that her Honour failed to appreciate that the Sch A Trigger Information, although derived from a different type of source from the Sch B Trigger Information, might still contain parts which disclosed generalised police methodology as well as parts which disclosed incident specific information. This may well have been the result of the way in which the material was put, and the concessions made, before her Honour.

In these circumstances, it does not appear to me that the Coroner’s decision was one at which no rational or logical decision maker could have arrived on the material before her and in the circumstances. Thus, I would reject the second ground of review.

Notwithstanding that, however, it does appear, if I have understood the Coroner’s reasons correctly, that there may have been some confusion because at [216] it appeared to be accepted that both the Sch A Trigger Information and the Sch B Trigger Information were to dealt with in the same way as the “material marked brown”, that is by being protected by suppression orders, but at [228] a different approach is taken to the Sch A Trigger Information. In addition, it was not clear whether the “normal”, “usual” or generalised methodology aspects of the Sch A Trigger Information were drawn to the Coroner’s attention in the same way as they were pointed out in these proceedings. For these reasons, there is much to recommend the approach submitted by the Attorney General that if there are thought to be matters which were not put clearly to the Coroner so that her Honour was caused to be confused about, or misunderstand the significance of, the Sch A Trigger Information, these matters should be re-agitated and drawn to the Coroner’s attention so that any confusion or misunderstanding can be addressed and any appropriate consequential changes to the orders made.

Under the third ground of review, the Commissioner submitted that the Coroner erred in law or fell into jurisdictional error by overlooking, not considering or misunderstanding the following claims or evidence:

It is convenient to deal with each of the different types of information separately.

The Commissioner submitted that a claim for non-publication orders had been made in respect of information disclosing the different characteristics of the tasers carried by certain officers compared to those carried by general duty officers in the material before the Coroner, namely: the second confidential affidavit of the Assistant Police Commissioner at pars 81 and 84; the Commissioner’s written submissions of 27 July 2021 par 43(c) and of 1 September 2021 pars 44(c) and 45(e); and the Aide Memoire par [11].

It was contended that, while the Coroner had dealt with other claims in relation to information about tasers, her Honour had failed to address the clearly articulated claim in relation to the different characteristics of certain officers’ tasers.

The Attorney General submitted, in substance, that, whilst the Coroner did not refer to the fact the tasers carried were different and the particular differing characteristics, her Honour did not need to. It was submitted that the substance of her Honour’s reasoning at [171]-[172] was that she was not satisfied that information pertaining to the particular characteristics of the tasers should be the subject of protective orders and that this responded to the Commissioner’s claim.

It is well established that a court, as well as an administrative decision maker, which fails to respond to a substantial, clearly articulated claim or submission falls into error, namely failing to accord procedural fairness and constructively failing to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ); Goodwin v Commissioner of Police [2010] NSWCA 239 at [40]-[43] (Basten JA, McColl JA and Sackville AJA agreeing); Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 at [19] (Rangiah and Downes JJ).

At par 84 of the second confidential affidavit of the Assistant Police Commissioner, it was expressly stated that “the Commissioner presses his application for non-publication orders over information which identifies differences between Tasers held by [certain officers] to those held by general duties officers.” The Commissioner’s written submissions of 27 July 2021 par 43(c) indicated that non-publication orders were sought in respect of “[g]eneral descriptions of the use and appearance of some weapons” and a footnote identified a large number of refences to tabs in one of the schedules before the Coroner. The Commissioner’s written submissions of 1 September 2021 included, in relation to the Commissioner’s application for non-publication orders referred to in par 43, at par 45(e) references to the evidence which supported that application in relation to the differences between tasers carried the different types of officers. Finally, par 11 of the Aide Memoire notes that in relation to the application for non-publication orders:

Having regard to that material, I accepted that the Commissioner made a substantial, clearly articulated claim or submission that information disclosing the different characteristics of the tasers carried by certain officers compared to those carried by general duty officers should be the subject of non-disclosure orders. The basis for the claim was the evidence of the Assistant Police Commissioner and the information itself.

It was not in dispute that the Coroner, in her reasons, did not refer to this specific type of information when dealing with whether non-disclosure orders should be made. It was also accepted that the relevant paragraphs of the reasons were as follows:

In [171] of her Honour’s reasons, the Coroner reached conclusions that:

The first conclusion was not relevant to the claim for non-disclosure orders made by the Commissioner. The second conclusion dealt with three types of information that did not include the different characteristics of the tasers carried by certain officers. From the Coroner’s failure in [171] to mention the type of information referred to in ground 3(a), it should not be inferred that she considered the Commissioner’s application in that regard and rejected it. Her reasoning at [172] provides no support for such an inference. Those reasons at [172] related to, inter alia, “mere references” to various types of equipment including tasers and other matters not related to ground 3(a). This paragraph did not relate at all to information as to the different characteristics of the tasers carried by certain officers.

In my view, [171] and [172] did not demonstrate that any substantive consideration had been given to the claim for non-publication orders in relation to information as to the different characteristics of the tasers carried by certain officers. Nor was it suggested that this claim was addressed elsewhere in her Honour’s reasons.

In these circumstances, I accepted that the Coroner failed to respond to this clearly articulated claim by the Commissioner. As a result, there has been a failure to accord procedural fairness and a constructive failure to exercise jurisdiction which constitute both errors of law on the face of the record and jurisdictional errors.

In making this finding, I should not be taken as being critical of the Coroner who was faced with an exceptionally complex and difficult task in identifying all of the claims made by the Commissioner, the information in respect of which they were made, the evidence in support of the claims and then considering and ruling on each of those claims. The nature and extent of the material before her Honour and the way in which the claims were presented meant that it was almost inevitable that an aspect of one of the types of claims made by the Commissioner might be overlooked.

For these reasons, I upheld ground 3(a). Accordingly, the Coroner’s order 29, by which the Commissioner’s application was otherwise dismissed, should be set aside in so far as it related to claim for non-disclosure orders in respect of information identifying the different characteristics of the tasers carried by certain officers compared to those carried by general duty officers. There should also be an order in the nature of mandamus requiring the State Coroner or a Deputy State Coroner to reconsider the Commissioner’s claim for non-disclosure orders in respect of that information in accordance with law.

Ground 3(b) involved the contention that the Coroner misunderstood the documents listed at items 5A-5C in Amended Revised Schedule B and as result found that they did “n[o] more than to record annual training days of the involved officers in previous years” (at [194]).

The Commissioner submitted that a claim for public interest immunity had been made in relation to documents and information concerning training undertaken by certain officers, including “Annual Training Schedules” for 2018 to 2021, which were items 5A-5C of the Amended Revised Schedule B before the Coroner. The evidence in support of that claim was said to include pars 37 to 39 of the Assistant Commissioner’s first confidential affidavit and pars 88 to 94 of the second confidential affidavit.

It was submitted that the Annual Training Schedule set out details of specialist training activities which revealed the types of weapons and equipment used by officers, and the capabilities of those weapons. It was contended in effect that, the Coroner, at [194], mischaracterised the documents as doing no more than recording annual training days of the officers involved in previous years and this demonstrated that the Coroner either failed to respond to the claim that was advanced by the Commissioner or failed to consider cogent evidence provided in support of that claim. It was contended that, either way, the Coroner erred.

The Attorney General referred to the Coroner’s reasoning at [191] and [194] of her reasons and submitted that this involved no error. In particular, it was submitted that the Court should not be “concerned with looseness of language…nor with unhappy phrasing” and that the reason “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”, citing the well known passage from Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 concerning the appropriate approach to the reasons of an administrative decision maker.

This ground 3(b) raised a similar issue to ground 3(a) but concerned an asserted failure properly to consider evidence rather than a failure to address a substantial and clearly articulated claim. This potential distinction was adverted to in Day v SAS Trustee Corporation [2021] NSWCA 71 by Meagher JA at [37] as follows:

In Minister for Immigration and Citizenship v SZRKT (2014) 212 FCR 99; [2013] FCA 317, Robertson J said, at [69] and [111]:

While the cases in the Federal Court concerned administrative tribunals, in my view, the principles stated are also generally applicable in relation to judicial review of decisions of a court such as a coroner’s court. The distinction between a failure to consider a substantial and clearly articulated claim and a failure to consider and properly understand the evidence relied upon in support of such a claim is not clear cut. Nonetheless, a failure to deal with, and properly consider and characterise, substantial and consequential evidence led in support of a clearly articulated claim may, depending on the importance of the material and the seriousness of any mischaracterisation, amount to an error of law and jurisdictional error.

The material relied upon in support of the claim for public interest immunity in respect of the Annual Training Schedules for 2018 to 2021, items 5A-5C of the Amended Revised Schedule B before the Coroner, was the evidence of the Assistant Police Commissioner referred to above as well as the Annual Training Schedules themselves. The Coroner apparently accepted the Assistant Police Commissioner’s evidence in support of the public interest immunity claims relating to training documentation, as stated at [185]. As a result, the determination of the Commissioner’s claim for public interest immunity in respect of the Annual Training Schedules depended fundamentally on the contents of those Training Schedules. In other words, the Annual Training Schedules amounted to very substantial and consequential evidence on this claim for public interest immunity.

The Coroner’s reasoning in relation to this claim was set out in [185] and [191]-[194] which were as follows:

Particularly from [185] and [194], it is evident that the Coroner’s conclusion that the Annual Training Schedules did not need any form of protection, unlike the other training related documents identified in [185], was primarily, if not entirely, based on her Honour’s assessment that those schedules did “no more than… record annual training days of the involved officers in previous years” and did not “reveal specifically what matters [certain] operatives are (and are not) trained in”.

A review of the Annual Training Schedules indicated, however, that they did not simply record the number or dates of annual training days completed by involved officers in previous years. The Schedules revealed specifically what matters certain operatives were (and by implication were not) trained in, contrary to what the Coroner appeared to have found at [185]. Indeed, they disclosed the types of firearms and other weapons and equipment used by officers, and some aspects of the capabilities of those weapons, including ranges at which the officers were trained in using those weapons, ammunition used in the training and the different types of weapons training involved. In addition, the types of drills and team work in which officers were trained were also set out in these documents.

Given the contents of the Annual Training Schedules, it did not appear to me that it was open to conclude that they did not reveal specifically what matters certain operatives were (and were not) trained in, at least during the training the subject of those schedules. Furthermore, as a result of my review of the schedules, I was satisfied that the Coroner’s description of them as doing no more than recording annual training days of the involved officers in previous years was so inadequate that the most likely explanation for these conclusions was that there had been a failure to deal with and properly consider and characterise what was, in effect, a most substantial and consequential part of the evidence led in support of the Commissioner’s claim for public interest immunity over the Annual Training Schedules. For these reasons, I was of the view that the Coroner failed to understand substantial evidence in support of, and determine, the claim for public interest immunity actually made by the Commissioner in relation to items 5A-5C of the Amended Revised Schedule B.

Counsel who appeared for the Commissioner in the Coroner’s court described the Annual Training Schedules as disclosing “the whole gamut of training activities undertaken by a certain unit in the last three years so really everything …”. It could not properly be said, in my view, that counsel’s description during oral submissions of the contents of the schedules in these general terms was inaccurate or that it could have misled or induced the Coroner into misunderstand the basis of the Commissioner’s claim in relation to the Annual Training Schedules.

Furthermore, the seriousness of the mischaracterisation of this material, which was of fundamental importance in determining the claim for public interest immunity, was such that it could not, in my view, be explained as “looseness of language” or “unhappy phrasing”, as the Attorney General submitted.

For these reasons, I concluded that the Coroner’s decision to reject the claim for pubic interest immunity in relation to the Annual Training Schedules, items 5A-5C of the Amended Revised Schedule B before the Coroner, in the circumstances involved jurisdictional error or error of law on the face of the record as a result of a failure to understand the evidence in support of, and properly consider, a substantial and articulated claim made by the Commissioner.

Thus, ground 3(b) should be upheld and order 29, by which the Commissioner’s application was otherwise dismissed, should be set aside in so far as it related to claim for public interest immunity in respect of items 5A-5C of the Amended Revised Schedule B before the Coroner. There should also be an order in the nature of mandamus requiring the State Coroner or a Deputy State Coroner to consider the Commissioner’s claim in respect of that information according to law.

Ground 3(c) concerned the Commissioner’s claim for protective orders in relation to the automated welfare check system of the New South Wales Police Force which was rejected by the Coroner at [279]-[281].

The Commissioner submitted that the Commissioner had made a claim for non-publication in relation to the automated welfare check function of the NSW Police supported by evidence from the Assistant Police Commissioner explaining the risk which would arise if the information were disclosed including officers’ lives being put at risk. It was contended, in effect, that the Coroner’s finding that the evidence did not support the claim was not made by reference to the evidence in question. Further at the hearing, the Commissioner submitted that the Coroner’s statement that her Honour could not understand how harm may arise was an error as it failed to consider how it may arise, regardless of whether she accepted it would.

The Attorney General submitted that the Coroner decided the matter on the evidence before her Honour, and that it was not necessary for her to make specific reference to the particular paragraphs of the relevant affidavit, in circumstances where it was clear that regard was had to Assistant Commissioner’s evidence which formed the basis of the Commissioner’s claim and that evidence had been specifically raised by counsel for the Commissioner at the hearing.

In oral submissions, the Attorney General emphasised that in assessing whether the Coroner failed to deal with the claim, it was important to have regard to how the claim was put before her Honour. It was submitted that the claim was put in a narrower way in the Coroner’s court compared to the way it was advanced by the Commissioner in this Court.

The claim for non-publication orders in relation to the automated welfare check function of the NSW Police was made in par 43(j) of the Commissioner’s submissions of 27 July 2021, par 44(i) of the submissions of 1 September 2021 and par 22 of the Aide Memoire. The Assistant Police Commissioner’s evidence in support of this ground was found in his first and second confidential affidavits. That evidence included an explanation of what was involved in automated welfare checks and the Assistant Commissioner’s view that the checks played an important role in ensuring officer safety in frontline policing. In addition, there was evidence that “similar orders were made by the [Coroners] Court” in another identified coronial inquest “and the Court made correlative redactions concerning that information in the published findings.”

Her Honour’s reasons in relation to this claim were as follows:

There is no reason to doubt that her Honour’s conclusion to the effect that she could not understand how disclosure of the information could lead to relevant harm was based “[o]n the material that has been provided to [her]” which included the Assistant Commissioner’s evidence.

I understood the statement in [281] that the Coroner “simply cannot understand how, were information to be disclosed … this would be detrimental to future police operations” to be an attempt to express the conclusion that, even accepting the Assistant Commissioner’s evidence and taking into account the submissions, her Honour did not accept that it had been established that there would be any relevant risk of harm from disclosure of the information. That this was so was confirmed by the statement that “[t]he evidence and material provided in support of this claim does not justify me making the orders that have been sought”. On my review of the evidence and submissions, I was satisfied that it was open to the Coroner to conclude that the material did not establish that there would be a relevant risk of harm from disclosure.

For these reasons, I rejected the submission that the Coroner’s findings were not made by reference to the evidence in question. In my view, her Honour considered the evidence and submission in support of the claim and reached a conclusion, that was open to her, based on that material. There was no error in this aspect of the Coroner’s decision as contended under ground 3(c) and I rejected that ground of review.

Notwithstanding that conclusion, if there were further material available to the Commissioner which explained, for example, how the risk of harm from disclosure of the automated health check information might arise, she would not be precluded from bringing a further application for a non-disclosure order in respect of that information.

In summary, the Commissioner has been successful on grounds 1(a) and (b) and grounds 3(a) and (b) but unsuccessful on grounds 1(c), 2 and 3(c).

As noted above, given the complexity in identifying the information and orders of the Coroner which were affected by each of the grounds of review and the overlap between them, the parties were in agreement that I should hand down my judgment dealing with each ground of review and then stand the matter over to allow the parties to consider the reasons and reach agreement, if possible, or make submissions as to the appropriate form of proposed orders to give effect to this judgment.

Also as noted above, the parties should also be given the opportunity to agree or make submissions on any redactions to this judgment and any final suppression or non-publication orders appropriate for these proceedings.

Accordingly, this judgment, without the addendum, was provided to the parties but not otherwise published on 16 May 2022 and on that day the Court made the following orders:

In accordance with the orders made on 16 May 2022, the parties provided proposed orders and there was a short hearing on 25 May 2022. As a result of that hearing, revised proposed orders were prepared. The parties agreed that revised proposed orders 1 to 5 reflected the conclusions reached in this judgment and I accepted this this was so. Nonetheless, in case there were some unanticipated difficulty or mistake, in order 9 I granted liberty to apply so that such matters could be dealt with, if need be.

In addition, the Commissioner sought, and the Attorney General did not oppose, the making of final suppression and non-publication orders in the terms of revised proposed orders 6 to 8. I was satisfied that order 6 was necessary to prevent prejudice to the proper administration of justice because disclosure or publication of the information identified in that order would effectively destroy the subject matter of the judicial review proceedings in this Court which were designed to protect that information from disclosure or publication. In addition, given the nature of the information and the potential for its disclosure or publication to compromise the safety of police officers or the community, I accepted that suppression and non-publication orders were necessary to protect the safety of those persons and persons in the community generally.

The Commissioner had, on 25 May 2011, initially proposed that the duration of such orders should be 99 years. This was put on the basis that the relevant police methodologies and other information had not changed markedly in the last 50 years and it was not anticipated that they would be likely to change in the foreseeable future. In the circumstances and in order to limit the duration to the shortest appropriate time limit, it appeared to me that the orders should be limited to 50 years or until further order of the Court.

Finally, given the sensitive nature of the information and the prospect of wide dissemination across Australia if the information were disclosed or published, it was appropriate in my view for the suppression and non-publication orders to apply throughout the Commonwealth.

Accordingly, the final orders in this matter made on 27 May 2022 were as follows: