Coronial proceedings and the operation of "section 61 certificates"

Section 6 of the Coroners Act 2009 (NSW) provides that the purpose of coronial proceedings are to determine the cause and manner of death when a person dies under suspicious, unnatural, or unknown circumstances. The Coroner has exclusive jurisdiction in relation to certain types of death including, for example, those in custody or minors whose death might be due to abuse or neglect or which are otherwise suspicious. The nature of coronial proceedings is distinct to traditional adversarial litigation as they take on more of an inquisitorial approach to fact-finding. Part of this fact-finding approach includes, among other things, obtaining statements from relevant witnesses who may then be required to give evidence at the hearing.

Person with a “sufficient interest”

Given the nature of coronial proceedings, there are no "parties" in the traditional adversarial sense. Rather, there are "interested parties" or persons with a "sufficient interest in the subject-matter of the proceedings". For these parties, the Coroner may grant that person leave to appear or to have legal representation at the inquest.

Protecting your client's interests

When representing a person with a sufficient interest and, depending on the nature of their interest in the coronial proceeding, legal practitioners should have regard to the application of sections 58 and 61 of the Coroners Act.

Under section 58(2) of the Coroners Act, a witness cannot be compelled to answer any question or provide a document that may tend to incriminate them or expose them to a civil penalty. This provision, however, is subject to section 61 of the Coroners Act which sets out the process by which the Coroner may compel a witness to give evidence with the protection of a "certificate". In effect, a Section 61 Certificate operates analogously to section 128 of the Evidence Act 1995 (NSW) and confers power on the Coroner to compel a witness to give evidence if the Coroner is satisfied that it is in the interests of justice to do so. This is important to note given that the Evidence Act does not apply in the Coroner's Court: Decker v State Coroner of NSW [1999] NSWSC 369; 46 NSWLR 415.

In circumstances where your client is concerned that their actions (or inaction) may have had a direct or indirect impact on the death under examination, it is common for a Coroner to grant a Section 61 Certificate when an objection to giving evidence is made. When a witness is granted a Section 61 Certificate, the evidence that the witness gives cannot be used against them in future proceedings in New South Wales, except for criminal proceedings relating to perjury.

When to make an application for a Section 61 Certificate

In Correll v Attorney General of NSW [2007] NSWSC 1385; 180 ACR 212, Justice Bell (as her Honour then was) considered whether a suspect in a murder investigation should be compelled to give evidence pursuant to section 33AA of the now repealed Coroners Act 1980 (NSW) (see equivalent provision at section 61 of the Coroners Act). Her Honour stated that:

"The plaintiff through his counsel was asserting his right not to be compelled to give evidence that may incriminate him of an offence arising out of the death of [the deceased]. In my opinion... it is difficult to conceive of a question relevant to the manner and cause of the death of [the deceased] that could be seen to be free of the potential to incriminate the plaintiff."

In appropriate matters, it therefore may be prudent to advise a client to apply for a Section 61 Certificate at an early stage of their evidence as even seemingly benign questions may invite the witness to give self-incriminatory evidence.

Objections to giving evidence on a global or question-by-question basis

There is some debate as to whether it is possible for a witness to make a global objection to giving any evidence under section 61 of the Coroners Act or whether it would be more appropriate for objections to be made on a question-by-question basis.

In Rich v Attorney General of New South Wales [2013] NSWCA 419, Justice Leeming stated that section 61 of the Coroners Act "only applies if a witness objects to giving particular evidence or evidence on a particular matter" and that it is not as broad as, for example, the power given by section 38 of the Independent Commission Against Corruption Act 1988 (NSW). The Court was told that global objections "was a course typically followed by the Coroner, and it was what occurred in Attorney General of NSW v Borland [2007] NSWCA 201." However, Justice Leeming found that such an approach "sits uneasily with the confined terms "particular evidence" and "particular matter" in s 61(4), especially when regard is had to the legislative history." Accordingly, in that case, the Court found that the legislative history tends not to support the use of global objections. Ultimately, however, it was not necessary for the Court to decide on the issue of whether objections under section 61 could be global or if it needed to be dealt with on a question-by-question basis. Despite this, the apparent tendency against global objections is also supported by Justice Adams in Decker v State Coroner who observed that “in general, the objection should be taken to each question as it is asked to enable the court to determine whether it be appropriately taken”.

The Local Court Bench Book suggests that raising an objection to each question asked will often result in an inefficient and unwieldly process and that the better approach may be to raise objections on an identified topic-by-topic basis, rather than on an individual or global basis. Overall, and as individual Coroners are not obliged to adopt this approach, it may be prudent to determine how a particular Coroner wishes to conduct their inquest so that an application under section 61 is appropriately made to ensure that your client's interests are properly safeguarded.