This applicant was a police officer who led an investigation into the death of a cyclist. The respondent was a coroner who held an inquest in relation to the death. In his findings, the coroner made adverse comments about the officer’s investigation of the death and the assistance provided by the officer during the inquest and the coroner also referred the officer’s conduct to the Commissioner of Police. The officer subsequently sought a declaration that the coroner’s referral was contrary to s 46(3) Coroner’s Act 2003 which, together with s 45(5) precluded the coroner from making any finding of civil liability. The issue for determination was whether the coroner’s referral amounted to a statement that the police officer was civilly liable for something. Martin J dismissed the officer’s application.
2 March 2020
The applicant police officer led an investigation into the death of a cyclist on the Warrego Highway in 2012. –. The respondent was a coroner who held a related inquest. .
In his findings from the inquest, the coroner commented that the investigation conducted by the officer was inadequate, and that the assistance the officer provided to the coroner similarly inadequate. The coroner also referred the officer’s conduct to the Commissioner of Police requesting consideration of whether disciplinary action should be taken against the officer on the basis of the inadequacies in the investigation and assistance during the coronial inquiry. .
The officer subsequently sought a declaration inter alia that the coroner’s referral was made contrary to s 46(3) Coroners Act 2003 (“Coroners Act”). . Together with s 45(5), s 46(3) Coroners Act relevantly requires that a coroner must not include in their findings or comments “any statement that a person is, or may be— … (b) civilly liable for something”. –.
Whether ss 45(5) and 46(3) applied to the coroner’s comments
Martin J identified that the heart of the officer’s argument was that disciplinary sanction is tantamount to being “civilly liable for something” because those proceedings are civil, rather than criminal, in nature. . While acknowledging that disciplinary proceedings are civil, his Honour indicated that being “civilly liable for something” within the meaning of the Coroners Act “should be read as referring to the type of liability which might arise, for example, from a negligent or reckless act”. .
His Honour noted that the coroner’s referral was “for consideration as to whether any disciplinary action should be taken [against the officer]”. . Martin J reasoned that the referral was not an expression of a view that the officer was liable to anyone for anything, but that his conduct was to be referred for further consideration. . His Honour highlighted that such disciplinary proceedings consider, for example, whether there had been a breach of the various regulations, codes and guidelines governing police behaviour. .
Martin J noted that Pierre v Chivell (2000) 77 SASR 282 concerned a similar provision of the Coroners Act 1975 (SA). . In that case, Nyland J had found (at 295, ) that the relevant provision was enacted to protect the courts’ role of determining civil or criminal liability by application of the law to the facts so as to satisfy the elements of a given crime or obligation. . Martin J concluded that the same consideration applied to s 46(3) Coroners Act, in that it was concerned with “preventing the making of findings or suggestion thereof, of criminal or civil liability”. .
In the result, Martin J dismissed the application. .