Local Court of New South Wales CITATION: Inquest into the death of Josephine Nellie Florence SPAIN [2010] NSWLC 14 JURISDICTION: Coronial Ms. C. Stern, Counsel Assisting Coroner PARTIES: Mr. A. McEvoy appearing in the interests of Registered Nurse Susan Oreilly (nee Jackson), Registered Nurse Kim Kagithala, Enrolled Nurse Sherry Piltz, Registered Nurse Gillian Bryant, Registered Nurse Jennifer Commins (and Nurse Unit Manager), Regstered Nurse Antje Badger (and Director of Nursing) and Enrolled Nurse Denise Axon Ms. C. Howell appearing in the interests of Registered Nurse Grant and Registered Nurse Peter Mahone Mr. M. Fordham appearing in the interests of the Greater Southern Area Health Service FILE NUMBER: PLACE OF HEARING: Coroner's Court Albury DATE OF DECISION: 05/20/2010 MAGISTRATE: Magistrate Lerve CATCHWORDS: Self Incrimination – section 61 Coroner's Act 2009 – whether Certificate can operate retrospectively LEGISLATION CITED: Cornwell v The Queen (2007) 231 CLR 260 CASES CITED: Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchcliffe & Anor [2009] NSWSC 354 Ollis v Melissari [2005] NSWSC 1016 Ying v Song [2009] NSWSC 1344 TEXTS CITED: Odgers – Uniform Evidence Law 8th Ed. Waller's Coronial Law & Practice in NSW 4th Ed. REPRESENTATION: ORDERS: Reasons for Decision on the issue of a Certificate Pursuant to s. 61(6) of the Coroners Act 2009 to Gillian Bryant 1. An inquest is being conducted into the death of the late Josephine Nellie Florence Spain who died at the Albury Base Hospital at about 8am on Monday 18th February 2008. The issues of identity of the deceased and date and place of death are uncontroversial. The inquest is principally concerned with the issues of the medical cause of death and the manner of the death. 2. Mrs. Spain was 87 years of age at the date of her death. She had been an inpatient at the Albury Base Hospital since 30 January 2008 on which date she presented at the Emergency Department with a host of significant symptoms. She suffered from chronic airways disease and she had had a tracheotomy. It also seems it was uncontroversial that she suffered from pneumonia while she was in hospital. 3. The deceased was found dead in her hospital bed by a trainee enrolled nurse, Sherry Piltz. Ms. Piltz was a relatively new trainee and had not before encountered a dead body. She immediately summoned the assistance of Registered Nurse Gillian Bryant. Both Ms. Piltz and Ms. Bryant gave statements to investigators with the Health Care Complaints Commission (HCCC), which form part of the brief that was tendered and admitted as Exhibit 2 in the Inquest. Both gave oral evidence. I have yet to complete hearing of the evidence at the Inquest, nor have I heard closing submissions from Counsel. Accordingly, it would be inappropriate to make any conclusions on the evidence of the witnesses at this stage of the proceedings. It is fair to say however that some of the evidence given by Ms. Bryant could conceivably be used against her in disciplinary proceedings with her professional body, which I am informed is the Nurses and Midwifes Board. As much is accepted by all parties at the Inquest. 4. Mr. McEvoy, who appears in the interests of Ms. Bryant and others, at the conclusion of the evidence of Ms. Bryant sought that I issue her with a Certificate pursuant to s. 61 of the Coroner's Act 2009. No objection was taken either by Ms. Bryant or by counsel on her behalf at any stage while evidence (either in chief or cross examination) was being given. I observe that Mr. McEvoy did take objection at an early stage of the evidence of subsequent witnesses, and those witnesses, Ms. Commins who was the Nurse Unit Manager at the relevant time, and Ms. Antje Badger who was the Director of Nursing at the relevant time, were granted a certificate without objection. 5. The issue then arises as to whether the Coroner's Court can retrospectively issue a Certificate pursuant to s. 61(6) of the Coroner's Act. Retrospectively meaning after all evidence has been given in circumstances where there was no objection at the time, but objection is taken at the conclusion of the evidence. Counsel Assisting questioned the power or jurisdiction of the Court to grant a Certificate in these circumstances. Neither Ms. Howell nor Mr. Fordham object. 6. Relevantly section 61 of the Coroner's Act 2009 provides: 61 Privilege in respect of self-incrimination (1) This section applies if a witness in coronial proceedings objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The coroner in the coronial proceedings must determine whether or not there are reasonable grounds for the objection. (3) If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness: (a) that the witness need not give the evidence unless required by the coroner to do so under subsection (4), and (b) that the coroner will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The coroner may require the witness to give the evidence if the coroner is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the coroner must cause the witness to be given a certificate under this section in respect of the evidence. (6) The coroner is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the coroner finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court within the meaning of the Evidence Act 1995 or before any person or body authorised by a law of the State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) A reference in this section to doing an act includes a reference to failing to act. (10) A certificate under this section can only be given in respect of evidence that is required to be given by a natural person. 7. It is not suggested that Ms. Bryant has committed an offence against or arising under an Australian Law or a law of a foreign country. However, the civil penalty to which she is liable is disciplinary action with her professional body with possible adverse consequences. 8. In my opinion the natural interpretation of the reading of the section, and in particular the words in s. 61(1) "…if a witness in coronial proceedings objects to giving particular evidence…" is that an objection is required either by or on behalf of the witness before the operation of the section is triggered. The added emphasis is mine. It is my further opinion that there is nothing elsewhere in section 61 to suggest any other interpretation. Mr. McEvoy in his oral and written submissions concedes that an objection is required to bring s. 61 into operation. He argues however, that I should give a broad meaning to words "object" and "objection". 9. Counsel directed my attention to the commentary to section 61 as contained in "Waller's Coronial Law & Practice in NSW" 4th Edition at 61.33 at p. 175. That commentary reads: "Section 61(5) enables a coroner to issue a certificate if a witness, having objected , voluntary gives the self-incriminating evidence". 10. Again, the added emphasis is mine. But again, there appears to be the requirement of an objection before the operation of the certificate can be given. In the matter before me there was no objection until the entirety of the evidence of the witness had been given. 11. Dealing with the words and the concepts of "object" and "objection" in deciding a similar issue relating to the issue of a Certificate pursuant to s. 128 of the Evidence Act 1995 Ward J. said in Ying –v- Song [2009] NSWSC 1344 at [45]-[47]: The critical factor seems to me to be that in order to invoke the privilege at common law the objector must, absent the privilege, be under some requirement to give the particular evidence to which objection can be raised. I note, in this regard, that in R v Bikic [2001] NSWCCA 537 at [14]-[15], Giles JA, with whom Sully and Levin JJ agreed, in determining whether there were reasonable grounds for an objection for the purposes s 128(2), had reference to the test arising from the common law cases, namely whether "there are reasonable grounds to apprehend danger to the witness from his being compelled to answer", and expressed the view that "the same concept underlies the words in s 128(2)". 46 The most analogous use of "object" and "objection" in the Evidence Act is in s 18, which deals with the compellability of spouses and others in criminal proceedings. It relevantly provides: (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required: (a) to give evidence, or (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. (4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. ... (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: ... 47 The other uses of "objection" within the Evidence Act are all instances of formal stances of opposition to particular action or to the adducing of evidence which is inadmissible or in a manner which is inadmissible or which is protected by a particular privilege (eg ss 37, 41, 118, 119, 120). In each instance the objection is taken to action of or evidence sought to be adduced by another party. In those circumstances, I do not believe the reasoning which underlies the conclusion that all that is required is an unwillingness, without a certificate, to give evidence (in circumstances where there is no compulsion that the evidence be given) is correct. 12. In the absence of any other guidance, I cannot perceive that these comments would not be applicable to the matter presently under consideration. 13. Mr. McEvoy in his written submissions (at paragraph 7) relies upon the decision of Campbell in Ollis –v- Melissari [2005] NSWSC 1016 to ground the submission that the word "object" as it appears in section 128 of the Evidence Act 1995, and s. 61 of the Coroners Act 2009 should be given a broad meaning. His Honour said at [5] of that decision: "…In my view, the expression "if a witness objects to giving particular evidence" is not to be construed in a narrow way, by reference only to someone saying "I object" in response to a particular question, in the course of taking evidence in court, in the way barristers traditionally do. Rather, the expression is to be construed more broadly, so that it also relates to the witness expressing an unwillingness to give the evidence. Further, it seems to me that the "particular evidence" which is referred to is not confined to particular questions, as they are asked one by one. Rather, it is capable of extending to a witness expressing an unwillingness to giving evidence on particular topics". 14. With respect to Mr. McEvoy's submissions, I am of the opinion that the extract set out immediately above does not assist his cause. The witness, Ms. Bryant did not express in any way an "unwillingness" to give the evidence. Mr. McEvoy submitted that she was brought to court by way of subpoena. There is nothing unusual or exceptional about a subpoena being used to ensure the attendance of a witness at judicial proceedings. Mr. McEvoy further submits that the fact that she was compelled to co operate with the Health Care Complaints Commission in making a statement also is sufficient to indicate an unwillingness. Again with respect, it is my opinion that while I am required to give a broad meaning to the word object, to give the word "object" the meaning urged upon me by Mr. McEvoy takes it well beyond any natural or acceptable meaning. 15. I do not have a transcript of the oral submissions. However, my note indicates that Mr. McEvoy orally submitted that the privilege against self-incrimination is a fundamental human right. In this regard I am referred to the decision of Murphy J. in Rochford –v- Trade Practices Commission (1982) 153 CLR 134. There could be no reasonable argument against this as a general proposition. However, the relevant part of the judgment of Murphy J. noting that the decision was concerned with the requirement to produce documents, reads: "The privilege against self incrimination is a human right, based on the desire to protect personal freedom and human dignity. The history of, and reasons for, the privilege suggest that it should not be extended to artificial persons such as corporations or to large or amorphous voluntary organisations" 16. Section 61 of the Coroners Act 2009 and section 128 of the Evidence Act 1995 are the means by which a claim for self-incrimination privilege is dealt with. There must be an objection before the operation of either section is triggered. 17. I sought assistance from Counse as to whether they were aware that this issue has arisen in other Inquests in which they have been involved. Mr. McEvoy assures me, which assurance I accept, that he is aware of a Deputy State Coroner giving a certificate in the same circumstances. Mr. Fordham assures me, which assurance I accept, that he is aware of a similar situation but where another Deputy State Coroner did not issue a certificate. 18. Given that section 61 of the Coroners Act 2009 closely mirrors s. 128 of the Evidence Act, 1995, I have had recourse to the latter, and the body of law that has developed in relation to that section in an effort to obtain guidance on this matter. Gleeson CJ, Gummow, Heydon and Crennan JJ in Cornwell –v- The Queen (2007) 231 CLR 260, 169 A Crim R 89, [2007] HCA 12 said at [91]: "…The role of a properly drafted certificate granted under s 128(6) (or s 128(3)) is simply to record a factual matter - what particular evidence was required to be given under s 128(5) (or was given after the accused chose to give it under s 128(2)). A s 128 certificate is only a convenient mechanism for use by a witness who later claims the protection given by s 128 and for aiding a court having the duty of determining that claim. It would be absurd if a witness were to fail to obtain the protection conferred by s 128(7) merely because a court which had decided that the conditions stipulated in s 128(1) and (5) (or s 128(1) and (2)) had been satisfied had failed to cause the witness to be given a certificate, whether because it had overlooked s 128(6) (or s 128(4)), or because, as here, a legal representative of the witness had failed to carry out a direction in relation to the certificate, or because of some lapse within the registry of the court. It would be equally absurd if a witness were to fail to obtain the protection conferred by s 128(7) merely because the witness and the court registry lost all copies of the certificate…" 19. Although not specifically on point I note in particular that the majority in Cornwell speak of a court determining the claim and a little later in the extract a court deciding on the conditions stipulated in the section. 20. Further, a little later in the decision at [106] their Honours said: "Finally, one other aspect of s 128 may be referred to. The opening words of s 128(1) provide that s 128 only applies if "a witness objects to giving particular evidence". A fair characterisation of the exchanges between counsel for the accused and Howie J set out earlier [99] is that while in one sense the accused "objected" to the 35th question he was asked in chief when he claimed privilege, in another sense he did not object at all. He evidently wanted to give some evidence about the Diez-Lawrence conversations. He could only be sure of giving it in the way he would have liked if he gave it in chief; if he took the risk of leaving its reception to the chance of particular questions in cross-examination, he ran the risk of not being able to give it, or not in the way perceived to be most favourable to his interests. Hence his claim of privilege was arguably not a means by which he "objected", but was an attempt to ensure that s 128 protected him from some potentially adverse consequences of evidence which he did not "object" to giving, but strongly wanted to give. 21. I may be reading too much into the words of the extract set out immediately above, but it is my opinion that it is plain enough that the objection must be taken, and further, that the objection must be taken at the time. 22. Counsel Assisting has helpfully drawn my attention to the decision of Einstein J. in Meiko Australia Pacific Pty Limited –v- Adam Samuel Hinchcliffe & Anor [2009] NSWSC 354 in which his Honour said at [183]-[186]: The purpose of s 128 of the Evidence Act may be gleaned from the tenor of the words used within it. Throughout, references are to the giving of future evidence, to which a certificate shall attach: "to giving particular evidence" in s 128(1); "the court is not to require the witness to give that particular evidence" in s 128(2); "If the witness gives the evidence" in s 128(3); "The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled; and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection" in s 128(4); "... the court may require the witness to give the evidence" in s 128(5). Section 128 does not contemplate that a certificate might issue in respect of evidence already given save where the evidence is given over an objection by the witness to giving evidence. 184 The terms of s 128 clearly contemplate that a certificate, if granted, is granted prior to the giving of evidence not to evidence which has already been given, particularly where no objection was taken. 185 To the extent that a certificate can be issued after the giving of evidence, this may occur where the court has ruled but not granted a certificate: Cornwell v R [2006] NSWCCA 116 at [87] - [94]. The certificate in that proceeding concerned answers concerning specific matters, in cross-examination. 186 A retroactive application of s 128 is unwieldy and is not contemplated by that section. It also undermines the purpose of the section, which is to prevent witnesses from being coerced into giving evidence which tends to incriminate them. Once the evidence has been given, it cannot be said that the witness has been compelled. 23. This is a clear statement of principle by which I am bound. 24. Ward J. also considered similar issues in the decision of Ying –v- Song [2009] NSWSC 1344. At [30] her Honour said: The privilege against self-incrimination is a privilege against being compelled to answer questions. At common law, the giving of evidence voluntarily would be treated as inconsistent with the maintenance of the privilege. It was only when a witness had invoked the privilege but had been wrongly compelled to give evidence by the presiding judicial officer that the witness would be protected from the use of the evidence given in subsequent proceedings (see R v Clyne (1985) 2 NSWLR 740 at 746-747 per Street CJ, Glass and Samuels JJA agreeing). That the invocation of the privilege is intrinsically linked to, and determinative of, whether the witness is compelled to answer is apparent from R v Garbett (1847) 1 Den 236 at 257-258; 169 ER 227 at 235-236, where it was held that: If a witness clams the protection of the Court, on the ground that the answer would tend to criminate himself, and there appears reasonable ground to believe that it would do so, he is not compellable to answer; and if obliged to answer, notwithstanding, what he says must be considered to have been obtained by compulsion and cannot be given in evidence against him. They did not decide, as the case did not call for it, whether the mere declaration of the witness on oath, that he believed that the answer would tend to criminate him, would or would not be sufficient to protect him from answering, where sufficient other circumstances did not appear in the case to induce the Judge to believe that it would not. The above nine Judges also thought that it made no difference in the right of the witness to protection, that he had chosen to answer in part; being of the opinion that he was entitled to it at whatever stage of the inquiry he chose to claim it, and that no answer forced from him by the presiding Judge (after such a claim), could be given in evidence against him, and they did not consider themselves bound by the ruling of Best CJ, in Dixon v Vale , 1 C & P278, and of Lord Tenterden, in East v Chapman, 2 C & P 573. 25. Her Honour went on to say at [39]: The privilege against self-incrimination is a privilege against being compelled to answer questions. At common law, the giving of evidence voluntarily would be treated as inconsistent with the maintenance of the privilege. It was only when a witness had invoked the privilege but had been wrongly compelled to give evidence by the presiding judicial officer that the witness would be protected from the use of the evidence given in subsequent proceedings (see R v Clyne (1985) 2 NSWLR 740 at 746-747 per Street CJ, Glass and Samuels JJA agreeing). That the invocation of the privilege is intrinsically linked to, and determinative of, whether the witness is compelled to answer is apparent from R v Garbett (1847) 1 Den 236 at 257-258; 169 ER 227 at 235-236, where it was held that: If a witness clams the protection of the Court, on the ground that the answer would tend to criminate himself, and there appears reasonable ground to believe that it would do so, he is not compellable to answer; and if obliged to answer, notwithstanding, what he says must be considered to have been obtained by compulsion and cannot be given in evidence against him. They did not decide, as the case did not call for it, whether the mere declaration of the witness on oath, that he believed that the answer would tend to criminate him, would or would not be sufficient to protect him from answering, where sufficient other circumstances did not appear in the case to induce the Judge to believe that it would not. The above nine Judges also thought that it made no difference in the right of the witness to protection, that he had chosen to answer in part; being of the opinion that he was entitled to it at whatever stage of the inquiry he chose to claim it, and that no answer forced from him by the presiding Judge (after such a claim), could be given in evidence against him, and they did not consider themselves bound by the ruling of Best CJ, in Dixon v Vale , 1 C & P278, and of Lord Tenterden, in East v Chapman, 2 C & P 573. 26. Her Honour concluded at [51]-[52]: I accept that if the whole of what the defendants contend is the relevant evidence in relation to the transaction(s) upon which the plaintiff sues is not placed before the court then the interests of justice may not be served in this case. However, I am unable to conclude that, on its proper construction, s 128 is enlivened in the present circumstances. Someone who chooses to adduce incriminating evidence (albeit because he or she feels forced to make such a disclosure to defend a claim made against him or her) is not in any real sense "unwilling" or averse to doing so. At common law such a person would not have been able to invoke the privilege against self-incrimination unless under a legal compulsion to give such evidence and I do not read s 128(1) as introducing a right to claim privilege which otherwise would not have existed. 52 In those circumstances, while I am conscious of the deference to be shown to the approach in Ferrall , I am of the view that the reasoning which led to the grant of the certificate in that case is not correct and, with respect, I adopt the reasoning towards which the majority in Cornwell appear to have been disposed. 27. I again indicate that I have gone to the law that has developed around s. 128 of the Evidence Act 1995 because of the close similarities (to the point of being practically identical) with the provisions of s. 61 of the Coroners Act 2009. Drawing from the decisions of Einsten J. and Ward J. set out above it is clear that the provision of s. 128 cannot operate retrospectively. Further, it is my opinion that the decisions to which I have referred also support my previously stated opinion that it is the objection to the giving of evidence that triggers the provisions. It is my opinion that given the very close similarity of the two legislative provisions for the same reasons s. 61 of the Coroners Act also cannot operate retrospectively. 28. I note that the learned author of Odgers "Uniform Evidence Law" 8th Edition at pp. 628 – 9 says the following: "In accordance with s. 132, if it appears to the court that a witness or a party may have grounds for making an application or objection under this provision the court must satisfy itself…that the witness or party is aware of the effect of the provision. Objection must be made to each question or document sought…" 29. It is tolerably plain from the requirement that objection must be taken to each question or document that objection must be made at the time that the relevant issue is raised in evidence and not merely a blanket objection at the conclusion of the evidence. 30. I indicated in the course of an exchange between bench and bar table in the course of hearing Mr. McEvoy's application that if I could be persuaded that there was power to grant the certificate retrospectively in circumstances where no objection was taken at the time of the giving of the evidence I would be inclined to do so. It is very much in the interests of justice for the evidence to be given by the nursing staff in this inquest. However, for these reasons, regrettably for Ms. Bryant I cannot be so persuaded. 31. I do however, take the liberty of indicating an opinion that it would be grossly unfair for any tribunal or body to use the evidence of Ms. Bryant against her, particularly as it seems to me that it was merely an oversight in the course of rather intense proceedings that an objection was not taken. The effect of the evidence, and the possibility of disciplinary proceedings be taken against Ms. Bryant was not immediately obvious to me which is why I did not intervene and advise of her rights. She was however, represented by counsel. Should any such disciplinary action be contemplated, it would seem to me that Ms. Bryant would have a powerful argument using argument analogous to the provisions of s. 135 of the Evidence Act, 1995 to have this evidence excluded, noting that s. 90 of that Act only applies to criminal proceedings. 32. The application for the Certificate pursuant to s. 61 of the Coroner's Act for Ms. Bryant is refused. Gordon Lerve Coroner Albury 19 May 2010. 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