The 'right to silence' in coronial inquests operates differently from its application in criminal proceedings. A witness in a coronial inquest does not have an absolute right to silence, but a privilege against self-incrimination. Self-incrimination privilege poses a challenge to the transparency of coronial inquests when individuals may hold crucial information but can’t share it without risking self-incrimination.
In the second article of The Inquest Series, we examine how the privilege against self-incrimination is applied in coronial inquests across Australia, and the extent to which coroners can compel witnesses to give evidence despite claims of potential self-incrimination.
What is self-incrimination privilege
The privilege against self-incrimination allows witnesses to refuse to give evidence that could lead to incriminating themselves.1 The privilege itself is underpinned by balancing the powers of the state, the rights and interests of citizens, upholding the presumption of innocence, and protecting privacy, freedom and dignity.2 Recognised as a fundamental common law right, it's more than just an evidentiary rule.3
In 1983, the High Court of Australia described the privilege as follows:
The application of self-incrimination privilege is narrower and limited to protecting the rights of an individual incriminating oneself.5 The High Court of Australia in Sorby v the Commonwealth (1983) affirmed the long established rule that no witness can be compelled to incriminate themselves.6 The protection against self-incrimination is compromised if witnesses are compelled by authorities to make confessions.7 However, the right is not automatically granted at the request of the witness.
While courts have traditionally upheld the privilege against self-incrimination, arguments relating to 'in the public interest' are causing the application of the privilege to be tested. Self-incrimination privilege has its own set of characteristics and rules, making the application of the privilege complex and subject to judicial scrutiny.8
How the self-incrimination privilege is applied
The application of self-incrimination privilege varies throughout the jurisdictions.
In Northern Territory and Western Australia, a coroner can compel witnesses to provide self-incriminating evidence in exchange for a certificate that prevents the evidence from being used against them in other proceedings. This privilege does not excuse witnesses from giving evidence.9 In the matter of Rolfe v The Territory Coroner & Ors [2023] NTCA 8 the Court of Appeal of the Northern Territory upheld that a witness is compelled to give evidence in a coronial inquest and is obliged to answer questions that may be self-incriminating.10 A police officer was called as a witness to a coroner’s inquest and objected to giving evidence on the basis that self-incrimination privilege afforded an immunity from examination in respect of any matter that might expose that witness to incriminating themselves which may lead to a disciplinary penalty. The coroner dismissed the objection and offered the police witness a certificate that compelled questions to be answered in the inquest but prevented the resulting evidence from being admissible in civil, criminal or regulatory proceedings against the witness. The Court of Appeal noted that there was a procedure allowing the coroner power to require witnesses to answer questions, whilst at the same time providing the witness with the protection of an immunity.
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.11
In Queensland, if a witness refuses to give evidence due to self-incrimination, the coroner may compel the witnesses to give that evidence if it is deemed to be in the public interest. However, the evidence compelled, as well as any derivative evidence flowing from the compelled evidence, is not admissible against the witness in other proceedings.12
In Victoria and New South Wales, the Coroners’ Act13 outlines how a witness may object to giving evidence on self-incrimination grounds. The witness must show 'reasonable grounds' for their objection, proving their evidence could indicate an offence or civil penalty.14 The reasonable grounds cannot be speculative. The coroner then assesses these grounds,15 and if satisfied, the witness need not provide evidence. However, if the coroner believes the interests of justice require the witness to provide the evidence, the coroner may compel the witness to give evidence and provide a certificate granting immunity from self-incrimination.16
The phrase in the 'interests of justice' is given the widest possible meaning, and is to be determined by reference to the context in which it is used in any particular circumstance.17 The coroner also has regard to whether the absence of the evidence allows them to fulfill the statutory requirement of conducting a 'complete and thorough examination of the circumstances of the deaths as can be reasonably done.'18 If the coroner cannot be adequately informed and make meaningful recommendations without the evidence of that witness,19 the evidence of the witness will be required at an inquest.20
What should you do?
The exercise of self-incrimination privilege in coronial inquests is a balancing act between competing considerations, although any restriction upon a coroner’s ability to hear and consider relevant evidence is generally regarded to be contrary to the public interest. Witnesses and their legal teams should be alive to the potential for self incrimination prior to taking the stand to give evidence, and ready to take steps to invoke the privilege where appropriate. Reasonable grounds for concerns about self-incrimination do not ultimately guarantee a right to silence, and witnesses should be prepared to give the evidence once required, noting the broad powers afforded to the coroners in all states.
As a separate but related matter, consideration may also be given to the court’s powers in relation to non-publication orders. This is discussed in more detail in our first article here.
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 Northern Territory Law Reform Committee, Report on Privilege against Self-Incrimination (Report No. 23) 2001, 1
6 (1983) 152 CLR 281 at 288; 46 ALR 237 at 241
7 Sorby v the Commonwealth (1983) 152 CLR 281 at 294; 46 ALR 237 at 246
8 See for example I Freckelton “The privilege against self-incrimination in coroners’ inquests” (2015) 22 JLM 491
9 Coroners Act 1993 (NT) s 38 and Coroners Act 1996 (WA) s 47
10 Rolfe v The Territory Coroner & Ors [2023] NTCA 8
11 Coroners Act 1995 (Tas) s 54
12 Coroners Act 2003 (Qld) s 39
13 Coroners Act 2008 (Vic) s 57 and Coroners Act 2009 (NSW) s 61
14 Coroners Act 2008 (Vic) s 57 and Coroners Act 2009 (NSW) s 61
15 Coroners Act 2008 (Vic) s 57(2) and Coroners Act 2009 (NSW) s 61(2)
16 Coroners Act 2008 (Vic) s 57(4)(b) and Coroners Act 2009 (NSW) s 61(3)(b)
17 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 [19]
18 Above at [77]
19 Above at [86]
20 Above at [97]
