Coroners hearings & refusal to give evidence

Although not directly related to medical treatment issues, Rich v Attorney General of New South Wales [2013] NSWCA 419 provides a useful appellate consideration of the circumstances in which a coroner may require a person to give evidence, over objection by that person.

The applicant a police officer, had shot and killed a man with a history of mental illness. The officer did not wish to give evidence (relying on the privilege against self incrimination), even though he was offered a a certificate by the State Coroner, which prevents the relevant evidence from being used against the person giving the evidence in any proceeding in a NSW court, or before any person or body authorised by a law of the State.

The Court of Appeal relevantly held:

  • No appeal lies from a Coroner’s decision. It was therefore necessary for the applicant to identify judicially reviewable error in the Coroner’s decision by showing that the Coroner failed to consider a relevant consideration. The Act does not mandate consideration of any particular matters, other than “the interests of justice”. [28]-[29]
  • The Coroner properly considered the question of risk from potential evidence given by the applicant. The Coroner did so expressly and the question of weight to be given to the competing considerations was a matter for her Honour. [33]
  • The Coroner failed to consider the possibility that the Director of Public Prosecutions might reconsider whether to prosecute the applicant, however this did not give rise to judicially reviewable error. [42]