Allowing elite South Australian police officers to don balaclavas or masks as they enter and exit a coronial inquest in a bid to protect their identity is “likely to attract more attention”, the Supreme Court says.
- The SA Police Commissioner has asked for a review of how elite officers should give evidence at inquests
- Coroner David Whittle previously told officers to “wear balaclavas” to protect their identities at court
- The Supreme Court said it could not intervene, but balaclavas “would likely attract more attention”
Police Commissioner Grant Stevens has asked the Supreme Court to review a decision made by state coroner David Whittle about how STAR Group officers should give evidence at an inquest into a fatal shooting.
Matthew Kim Morgan, 24, died from chest and neck injuries after being shot by police at the Tollgate Motel at Glen Osmond in October 2017.
An inquest is investigating the circumstances surrounding the stand-off and the police response.
It is the second Supreme Court action the Police Commissioner has taken against South Australian coroners. He launched a challenge to findings made by deputy coroner Anthony Schapel into the 2015 fatal shooting of Alexander Kuskoff.
Mr Schapel found police should reconsider its policy to shoot high-risk threats in the torso but aim for arms or legs.
A decision for that challenge is yet to be delivered.
Coroner tells STAR Group officers to ‘wear balaclavas’
In December 2019, lawyers for Mr Stevens applied to Mr Whittle for STAR Group officers giving evidence in the Matthew Morgan inquest to enter and exit the court from a private entrance or give evidence remotely via video.
But Mr Whittle refused both applications, instead suggesting they could wear balaclavas and masks to protect their identity.
Mr Stevens sought a review of that decision, saying Mr Whittle had failed to consider the “undue hardship” it would have on the officers, and it was “in the interests of national security” to protect their identities.
STAR Group officers, who were present when Matthew Kim Morgan was shot during a siege in 2017, were asked to give evidence at an inquest.(News Video)
“A confrontation may lead to a range of consequences, such as the attraction of unnecessary public attention,” he stated in his application for review.
He said any filming or photographing outside the court could inadvertently lead to the publication of the shooter’s identity.
In her judgement, Justice Trish Kelly said Mr Whittle’s main concern in refusing the applications was that he did not want the court to be seen to be “affording preferential treatment” to the police officers.
“The coroner also appears to have been concerned that no similar application was made in the matter of Kuskoff,” she said.
She said Mr Stevens considered the proposal for the STAR Group officers to wear balaclavas or masks as “unreasonable”, but Mr Whittle thought it was a “complete answer to the problem”.
“That view is somewhat surprising in light of the fact that the donning of masks or balaclavas in the fashion suggested by the coroner would likely attract more attention to the officers,” she said.
“I am concerned that the solution proposed by the coroner is not likely to enhance either the dignity or the reputation of the Coroner’s Court.”
Supreme Court ‘cannot intervene’
But Justice Kelly said the Supreme Court could not intervene on a decision made by the coroner unless there had been a “jurisdictional error”.
“The coroner had the power to make either of the orders sought,” she said.
“Absent jurisdictional error being established, it is not for this court to substitute its own view of the correct decision.”
But she found Mr Stevens was denied “procedural fairness” in relation to officers giving evidence remotely via video and had asked Mr Whittle to re-hear that application.
“I have considered whether this matter should be remitted to a different coroner in light of the submissions which surfaced during argument on this review,” she said.
“Despite the argumentative tone in some of the coroner’s exchanges with counsel acting for the commissioner, I am not persuaded that he is incapable of bringing a fair and impartial mind to his consideration of any further application which the Commissioner may seek to make.”