Self-incrimination privilege has long been established as a point of contention in coronial inquests. Although self-incrimination privilege does not feature regularly, when in issue, it is fraught with complexities that can potentially present an obstacle for a coronial inquiry where information is held by a person who cannot share that information freely without incriminating themselves.
This article was originally published in the Lexis Nexis Health Law Bulletin Volume 31 No 3.
What is self-incrimination privilege
Self-incrimination privilege allows a witness to decline to provide evidence that would incriminate themselves and expose them to being convicted of a crime.1 The privilege itself is underpinned by a number of rationales — from preserving the proper balance between the powers of the state and the rights and interests of citizens, to the preservation of the presumption of innocence, and a human right, necessary to protect privacy, freedom and dignity.2 The privilege has also long been recognised as 'a basic and substantive common law right, and not just a rule of evidence'.3
In 1983, the High Court of Australia described the privilege as follows:
The privilege is one aspect of the right to silence.5 Typically, the right to silence protects the rights of an individual to refuse to answer questions, and say nothing, to law enforcement officers or a court, regardless of whether that testimony is incriminating against themselves or others.
The self-incrimination privilege however is narrower and limited to protecting the rights of incriminating oneself.6 The High Court of Australia decision of Sorby v the Commonwealth (1983) speaks of the 'firmly established rule of the common law since the seventeenth century that no person can be compelled to incriminate himself.'7 The protection against self-incrimination is 'weakened if power exists to compel a suspected person to confess his guilt.'8 However the right not automatically granted at the request of the witness.
While courts have traditionally and often emphatically upheld the privilege against self-incrimination, more recently arguments relating to 'in the public interest' are causing the privilege to be tested. Self-incrimination privilege has its own set of characteristics and rules, that within each Australian jurisdiction differ and have been the subject of judicial scrutiny, thereby making the self-incrimination privilege even more difficult to decipher.9
How the self-incrimination privilege is applied
The application of the self-incrimination privilege differs throughout Australia.
The position in Northern Territory and Western Australia allows a Coroner to compel a witness to provide evidence, regardless of the evidence being self-incriminating, in return for the granting of a certificate which precludes the witness from no longer refusing to give evidence on grounds of self-incrimination.10 Any evidence is then not able to be used against the witness in other proceedings.
The privilege still requires evidence to be provided to the Coroner, and does not excuse a witness. Recently, this was put to the test when Justice Kelly of the Northern Territory Supreme Court ruled that a claim against self-incrimination privilege did not exist in the context of a coronial inquest.11
The matter involved a police officer shooting dead a young man at close range. The police offer was charged with murder, but acquitted at trial. The police officer made efforts to invoke the self-incrimination privilege in order to preclude him from giving evidence that may incriminate him. Lawyers for the Northern Territory Attorney-General urged the Court of Appeal to overrule the Supreme Court decision and find that the privilege applies in the context of a coronial inquest and that a certificate could protect witnesses from penalties. The matter is currently before the NT Supreme Court of Appeal and awaiting determination.
In Tasmania, the evidence of a witness before a Coroner is not able to be used in evidence against that witness in any civil or criminal proceeding.12
The position in Queensland differs again, however essentially it provides that if a person refuses to give evidence due to self-incrimination, the Coroner may require that evidence if it is satisfied it is in the public interest. In that scenario, the evidence is not to be used against the witness in any other proceeding.13
In Victoria and New South Wales, the Coroners’ Act14 sets out prescriptively how a witness may object to giving evidence, or evidence of a particular matter at an inquest on the ground that the evidence they will give as a witness will incriminate them.
A person seeking to rely on self-incrimination privilege must identify whether there are 'reasonable grounds' for their objection.15 This requires the witness to demonstrate that their evidence would prove they have committed an offence or are liable to a civil penalty.
Once the objection is made, the Coroner must determine whether there are reasonable grounds for the objection.16 If the Coroner is satisfied that reasonable grounds for the objection exist, the Coroner must inform the person that they need not give evidence.
However, there are circumstances in which a Coroner may require the person to give evidence if the Coroner 'is satisfied that the interests of justice' require that person give evidence.17 In this case, if the Coroner requires them to do so, the Coroner will provide a certificate granting immunity from their evidence incriminating themselves.
St Basil’s Home for the Aged
St Basil’s Home for the Aged (St Basil’s) is a residential aged care facility in Fawkner, Victoria. In June/July 2020, St Basil’s was the subject of a deadly COVID-19 outbreak at their residential aged care facility where a total of 94 staff tested positive, while 45 residents died from COVID-19 related complications. A Coronial Inquest into the deaths of the 45 St Basil’s residents took place, hearing from some 55 witnesses over 23 hearing days. Importantly, WorkSafe was granted leave to appear at the Inquest as an interested party and it informed the Coroner it was conducting a criminal investigation in relation to potential offences under OHS legislation in relation to the COVID-19 outbreak at St Basil’s.
During the Coroner’s investigation, St Basil’s was charged by WorkSafe over alleged breaches relating to an alleged failure to maintain a predictable and low-risk working environment — including, amongst other matters, an alleged failure to instruct, train and require workers to wear personal protective equipment.
Mr Kontis (Kontis) was the chairman at St Basil’s and Ms Kos (Kos) was the facility manager and director of nursing. Kontis and Kos played central roles in the management of St Basil’s and were each served with a notice from the Coroner requiring them to provide a statement setting out their evidence in relation to various matters.
Both Kontis and Kos exercised their right to silence. They sought to be excused from giving evidence and relied on the self-incrimination privilege. In particular, Kontis and Kos objected to giving evidence on the basis they had 'reasonable grounds' to object to giving evidence as they each held a real concern that any answer, they may give in evidence in the inquest might prove an element of an offence under the Occupational Health and Safety Act 2004 (Vic), in which there was a 'parallel criminal investigation' underway in respect of alleged breaches.18
Kontis and Kos said they were exposed to prejudice from the derivative use of the evidence in that it would allow WorkSafe investigators and prosecutors to craft particulars of charge around the evidence of Kontis and Kos, thereby creating prejudice to them.19 Further:
Kontis and Kos additionally submitted that the prejudice flowing to them would include 'locking them in'21 to a particular account and that their evidence was not of such importance to the Inquest that the Coroner would be unable to make findings as required.22
The Coroner closely examined the self-incrimination privilege and found that the risk of Kontis and Kos being charged was speculative.23 The Coroner found that the phrase in the 'interests of justice' was to be given the widest possible meaning, and is to be determined by reference to the context in which it is used in any particular circumstance.24 In particular, the Coroner noted that it was whether, in the absence of Kontis and Kos’ evidence, he was able to fulfill the statutory requirement of conducting a 'complete and thorough an examination of the circumstances of the deaths as can be reasonably done.'25 In the absence of Kontis and Kos’ evidence, the Coroner was not adequately informed to make a meaningful recommendation.26
The Coroner therefore found that in the interests of justice, both Kontis and Kos be required to give evidence in the Inquest.27
Kontis and Kos appealed the Coroner’s decision. Both the Supreme Court of Victoria and the Supreme Court of Appeal rejected Kontis and Kos’ appeal.28 The Court of Appeal found that the Coroner did not make an error in attributing the assessment of in the 'interests of justice'. Whilst Kontis and Kos will not be allowed to maintain the right to silence, they will be required to give evidence to the Coroner when the Inquest resumes. Currently the Inquest is on hold pending completion of the WorkSafe prosecution, thereby minimising any prejudice to Kontis and Kos arising from their evidence.
Conclusion
The exercise of self-incrimination privilege in an inquest settling involves a balancing act between competing considerations. Where a coronial inquest requires evidence from a key witness, reasonable grounds for concerns about self-incrimination privilege do not guarantee a right to silence. Legislation in all states enables a Coroner to require a witness to give evidence in certain circumstances, such as where it is in the 'interests of justice' and necessary for the Coroner to be fully informed of all matters to make a decision.
1 Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws, ALRC Report 129, 2016, p 309.
2 Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws, ALRC Report 129, 2016, p 310.
3 Reid v Howard (1995) 184 CLR 1 at 8; 131 ALR 609, 615; [1995] HCA 40; BC9506438.
4 Sorby v Commonwealth (1983) 152 CLR 281, 288; 46 ALR 237, 241; [1983] HCA 10; BC8300067 (citing Lamb v Munster (1882) 10 QBD 110 , 111 ).
5 Queensland Law Reform Commission, The Abrogation of the Principle against Self-Incrimination Report No 59 (2004) 54; R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1. See also A Gray 'Constitutionally Heeding the Right to Silence in Australia' (2013) 39 Monash University Law Review 156, 158.
6 Northern Territory Law Reform Committee, Report on Privilege against Self-Incrimination (Report No. 23) 2001, 1.
7 (1983) 152 CLR 281 at 288; 46 ALR 237 at 241.
8 Sorby v the Commonwealth (1983) 152 CLR 281 at 294; 46 ALR 237 at 246.
9 See for example I Freckelton 'The privilege against self-incrimination in coroners’ inquests' (2015) 22 JLM 491.
10 Coroners Act 1993 (NT) s 38 and Coroners Act 1996 (WA) s 47.
11 M Mackay 'Northern Territory police officer Zachary Rolfe appeals judge’s decision compelling him to give evidence at Kumanjayi Walker inquest', 7 January 2023, 'ABC News', accessed 6 April 2023, www.abc.net.au/news/2023-01-07/nt-rolfe-court-appeal-decision-compell-evidence-walker-inquest/101834420 .
12 Coroners Act 1995 (Tas) s 54.
13 Coroners Act 2003 (Qld) s 39.
14 Coroners Act 2008 (Vic) s 57 and Coroners Act 2009 (NSW) s 61.
15 Coroners Act 2008 (Vic) s 57 and Coroners Act 2009 (NSW) s 61.
16 Coroners Act 2008 (Vic) s 57(2) and Coroners Act 2009 (NSW) s 61(2).
17 Coroners Act 2008 (Vic) s 57(4)(b) and Coroners Act 2009 (NSW) s 61(3)(b).
18 See In the Matter of an Inquest into the deaths of residents of St Basil’s home for the aged, Ruling on applications by Kon Kontis and Vicky Kos under section 57 of the Coroners Act 2008 (Vic), COR 2020 4101, at [25]. Accessed online on 16 May at www.coronerscourt.vic.gov.au/sites/default/files/2021-12/St%20Basil%27s%20Inquiry%20-%20Section%2057%20Ruling%2C%20dated%2022%20December%202021.pdf .
19 Above at [30].
20 Above at [33].
21 Above at [31].
22 Above at [38].
23 Above at [55].
24 Above at [19].
25 Above at [77].
26 Above at [86].
27 Above at [97].
28 See Kontis v Coroners Court of Victoria [2022] VSCA 274; BC202217539; Kontis v Coroners Court of Victoria [2022] VSC 422; BC202207266.
