Musumeci v Attorney General of NSW & Anor [2003] NSWCA 77

Reported Decision : 57 NSWLR 193 140 A Crim R 376

New South Wales Court of Appeal

CITATION : Musumeci v Attorney General of NSW & Anor [2003] NSWCA 77 HEARING DATE(S) : 04/03/03 JUDGMENT DATE : 9 May 2003

JUDGMENT OF : Beazley JA at 1; Ipp JA at 2; Young CJ in Eq at 42 DECISION : By Majority (1) Leave to appeal granted (2) Direct the claimant to file in the registry of the Court within 48 hours a notice of appeal in the form of the draft that has been handed to the Court (3) Appeal upheld (4) Judgment of Hidden J in the Court below be set aside (5) Subject to any question of privilege or immunity, the Coroner, in continuing the inquest, supply to the claimant forthwith all material in his possession or in the possession of the sergeant assisting which relates to possible involvement of the claimant in the death of Pauline Elsie Anne Gillard (6) First Opponent to pay the costs of the claimant of the appeal and of the proceedings in the Court below.

CATCHWORDS : CORONIAL INQUEST - Coroners Act 1980, s 19 - Requirements of procedural fairness - Nature of a coronial inquest - Stage at which procedural fairness requires the disclosure of all relevant material to a witness whose interests might be adversely affected by the exercise of the Coroner's powers under s 19 - Circumstances in which the withholding of relevant material from such a witness is necessary to protect the integrity of the investigation - Withholding relevant material for tactical reasons. D Coroners Act 1980, ss 19, 22, 22A, 31, 32, 33, 47 LEGISLATION CITED : Education Commission Act 1980 Justices Act 1902, s 41 Supreme Court Act 1970, s 65 Allcroft v London (Bishop) [1981] AC 666 Annetts v McCann (1990) 170 CLR 596 Attorney General v Maksimovich (1985) 4 NSWLR 300 Bruce v Cole (NSWCA, 12 June 1998, unreported) Fairfax Publications Pty Ltd v Abernethy [1999] NSWSC 826 Harrison v Pattison (1988) 14 ALD 570 Herron v Attorney General for NSW (1987) 8 NSWLR 601 John Fairfax & Sons Ltd v Gill (1988) 12 NSWLR 77 Kioa v West (1985) 159 CLR 550 CASES CITED : Maksimovich v Walsh (1985) 4 NSWLR 318 Mannah v State Drug Crime Commission (1987) 13 NSWLR 28 McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54 Minister for Immigration and Multicultural Affairs; Re Ex Parte Lam [2003] HCA 6 Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 Russell v Norfolk (Duke) [1949] 1 All ER 109 R v South London Coroner, Ex Parte Thompson (1982) 126 SJ 625 Sankey v Whitlam (1978) 142 CLR 1 Stanton v Abernathy (1990) 19 NSWLR 656 Andrew Musumeci (Claimant) PARTIES : Attorney General of NSW (First Opponent) Mr C Milovanovich (Second Opponent) FILE NUMBER(S) : CA 40593/02 J Basten QC/ B Vasic (Claimant) COUNSEL : P A Johnson SC/A Naylor (First Opponent) Submitting Appearance (Second Opponent) Dominic David Stamfords (Claimant) SOLICITORS : I V Knight - Crown Solicitor (First Opponent) Submitting Appearance (Second Opponent)