Ahmet v State of Victoria & Ors (Ruling)
[2014] VCC 922
•25 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-11-05086
| BARIYOW AHMET | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| MARK ROBERTSON | Second Defendant |
| NICK KONSTANTINIDIS | Third Defendant |
| TIMOTHY VERRENKAMP | Fourth Defendant |
| MELISSA JARDINE | Fifth Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2014 | |
DATE OF RULING: | 25 June 2014 | |
CASE MAY BE CITED AS: | Ahmet v State of Victoria & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 922 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Rule 42A subpoena – subpoena served on a medical clinic and Corrections Victoria to obtain access to the plaintiff’s medical records – whether privileged pursuant to s28(2) of the Evidence (Miscellaneous Provisions) Act 1958 – whether there had been implied waiver of such privilege.
Rule 42A subpoena – subpoena served on the Chief Commissioner of Police by the second, third, fourth and fifth defendants to obtain access to the plaintiff’s criminal records – whether relevant – forensic purpose to admit evidence of tendency pursuant to s97 of the Evidence Act 2008.
Answers to Interrogatories – serial defects in the drafting of interrogatories delivered by the second, third, fourth and fifth defendants for the examination of the plaintiff.
Answers to Interrogatories – adequacy of answers made by the litigation Guardian for the fifth defendant – whether there had been compliance with r30.08 of the County Court Rules of Civil Procedure 2008.
Rule 42A subpoena to the Chief Commissioner of Police – seeking documents relevant to complaints against police officers – whether covered by public interest immunity covered by s130 of the Evidence Act 2008.
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958; Evidence Act 2008; County Court Civil Procedure Rules 2008; Police Regulation Act 1958.
Cases Cited:Ginnity v Prefsure Life Ltd [2007] VSC 284; Elliott v Tippett & Anor (2008) 20 VR 195; Mann v Carnell (1999) 201 CLR 1; Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921; Alister v R (Ananda Marga Conspiracy/Hilton Bombing case) (1984) 154 CLR 404; Newnham v Davis [2010] VSC 13; Ragg v Magistrates’ Court of Victoria & Anor (2008) 18 VR 300; Yunghanns v Candoora No 19 Pty Ltd [2000] VSC 505; Sankey v Whitlam (1978) 142 CLR.
Ruling: The subpoena served by the second, third, fourth and fifth defendants on the proper officer of the Wellington Street Medical Centre dated 4 April 2014 is set aside.
The subpoena served by the second, third, fourth and fifth defendants on the proper officer of Corrections Victoria dated 12 November 2013 is set aside.
The application by the second, third, fourth and fifth defendants requiring the plaintiff to swear further and better answers to interrogatories dated 29 July 2013 is refused.
The first defendant, by herself or by her Litigation Guardian, must swear further and better answers to the plaintiff’s Interrogatories dated 29 July 2013 on or before 4.00pm on 18 July 2014.
The application by the plaintiff to set aside the subpoena served by the second, third, fourth and fifth defendants on the Chief Commissioner of Police dated 12 November 2013 is refused.
Inspection of the documents produced by the Chief Commissioner of Police pursuant to the subpoena is permitted on a date to be agreed between the parties, or in the absence of agreement, at the direction of the Principal Registrar or her nominee, and before 4.00pm on 1 August 2014.
The plaintiff is permitted to inspect documents first, and then followed by the second, third, fourth and fifth defendants.
The application by the Chief Commissioner of Police to set aside the subpoena served on him by the plaintiff dated 28 March 2013 is granted.
Further Order that no interlocutory steps, including the issue of subpoenas, be undertaken by any party without the leave of the Court. Any such application must be made to the Court on notice to the other parties.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with Mr K McDonald | Flemington & Kensington Community Legal Centre |
| For the Second, Third, Fourth and Fifth Defendants | Mr P Lawrie | Russell Kennedy |
| For the Chief Commissioner of Police | Mr A Dinelli | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
1 The plaintiff alleges that on 11 and 12 October 2004, the second, third, fourth and fifth defendants (“the police members”) arrested him and subsequently assaulted him in the course of the arrest. After he was restrained, he was allegedly conveyed to a police station, where he was again assaulted. He was charged with resisting arrest, in addition to a number of other very serious charges. He was subsequently acquitted of that charge, but convicted of a number of other charges.
2 In the Further Amended Statement of Claim dated 15 May 2013, the plaintiff pleaded that he was falsely imprisoned, battered and maliciously prosecuted by the police members.
The applications
3 The parties collected together all of the outstanding interlocutory applications which I was then asked to determine at a Directions Hearing on 13 June 2014. I will set them out under subject headings and deal with them as they were raised before me.
4 Mr T Monti, Senior Counsel, appeared with Mr K McDonald of Counsel for the plaintiff. Mr P Lawrie of Counsel appeared for the police members. Mr A Dinelli of Counsel appeared for the Chief Commissioner of Police. The first defendant was not represented at the Directions Hearing. I excused it from the need to appear because it was not a party to any of the outstanding interlocutory applications.
5 The Chief Commissioner of Police is not a party to the proceeding. However, he was represented by Mr Dinelli, who applied to set aside a subpoena dated 28 March 2014 served by the plaintiff.
The Police members’ subpoena – Wellington Street Medical Centre
6 This application was made by Mr Lawrie, and resisted by Mr Monti and Mr McDonald.
7 The police members served a subpoena, pursuant to r42A.03(1), dated 4 April 2014, on the proper officer of the Wellington Street Medical Centre, 41 Wellington Street, Flemington. The subpoena requires the production of:
“The documents and things you must produce are as follows:
1All clinical notes, medical reports (including any computerised medical records or histories), handwritten notes, x-ray films, CT, MRI or other diagnostic scans, certificates or reports (including draft reports) relating to Bariyow Ahmet (also known as Bariow Hussein), (DOB: 7 May 1973).”
8 Mr Monti applied for the subpoena to be set aside. The sole basis for that is that the plaintiff has attended the medical centre for medical treatment. He submitted that the plaintiff’s medical records held by the medical centre are privileged. He relied upon s28(2) of the Evidence (Miscellaneous Provisions) Act 1958, which is in the following terms:
“No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.”
9 Mr Monti informed me that on his instructions, the plaintiff would not consent to any of the medical practitioners at the medical centre divulging any information which they had acquired in attending upon him and which was necessary to enable them to prescribe or act for the plaintiff.
10 Mr Monti submitted that s28(2) applied in the absence of any waiver of the right of the plaintiff to claim privilege. He informed me that no extracts of the medical records of the medical centre had been exchanged by the plaintiff with any of the defendants either directly or indirectly. Mr Lawrie agreed that was the case.
11 Whilst Mr Lawrie conceded that s28(2) applied, he submitted that the plaintiff had impliedly waived any privilege he has over the medical records. He submitted that the implied waiver arises because the plaintiff is claiming damages for the physical injuries alleged to have been inflicted on him by the police members. Paragraph 18 of the Further Amended Statement of Claim demonstrates that to be correct. The plaintiff claims physical injuries to his face, eye, lips, neck, left ear and left forearm, and headaches. Therefore, he submitted that the medical records of the medical clinic have been made relevant by reason of the plaintiff having commenced this proceeding.
12 Mr Lawrie referred me to Ginnity v Prefsure Life Ltd[1] and Elliott v Tippett & Anor.[2] He submitted that the plaintiff, in this case, could not claim medical privilege because, by commencing this proceeding and claiming damages for physical injuries, he had impliedly waived medical privilege. A limb of implied waiver has been referred to as “issue waiver” in both of those authorities. Before turning to those authorities, it is relevant to go to the starting point, which is the seminal decision of Mann v Carnell,[3] which establishes that there is a basis upon which the medical privilege can be said to have been waived:
“Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is ‘imputed by operation of law’. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”[4]
[1][2007] VSC 284
[2](2008) 20 VR 195
[3](1999) 201 CLR 1
[4]at 13, paragraph [29]
13 In Ginnity, Hollingworth J made the following relevant observation:
“In the present case, the defendant relies upon the so-called ‘issue waiver’ limb. This arises where the privilege holder has put the contents of an otherwise privileged communication in issue for the purpose of mounting their case, with the consequence that an inconsistency or unfairness arises between the making of the assertion and the maintenance of the privilege. The most obvious way in which the communication may be put in issue is by the privilege holder’s pleadings. In each case it is necessary to consider the extent to which the privileged communication has been put in issue, and the extent of any unfairness or inconsistency caused thereby.”[5]
[5]at paragraph [15], and also Elliott v Tippett (supra)
14 It is important to understand the peculiar facts which underwrote her Honour’s ruling that there had been issue waiver. The plaintiff claimed income protection benefits under a policy of insurance. She said that from June 2000 she had been suffering from a depressive disorder. She had received treatment from a psychiatrist from March 2001. Having considered the facts, and the legal principles, her Honour said:
“The plaintiff’s claim against the defendant clearly puts in issue her mental state since June 2000. She claims to be entitled to policy benefits because she has suffered from a depressive disorder for which she was under the care of a medical practitioner at all relevant times. Her treating psychiatrist for three months during that period was Dr Strungs. Even if Dr Strungs is not called as a witness, it is difficult to see how the plaintiff’s case could proceed in respect of this period without the plaintiff giving some evidence as to her treatment by Dr Strungs.”[6]
[6]at paragraph [25]
15 In the course of considering the legal principles, her Honour had regard to Mann. It would appear that her Honour considered the inconsistency in the plaintiff’s claim of medical privilege when there was some inevitability that the plaintiff would need to give evidence of her treatment by the psychiatrist, and, of course, there were questions of fairness to the defendant in being prevented from having the psychiatrist’s records released for inspection.
16 In Ginnity, it would appear that it was both the commencement of the proceeding and the relationship of the medical practitioners to the cause of action and the relief sought by the plaintiffs that underwrote her Honour’s ruling releasing the relevant documents for inspection. On my reading of both Ginnity and Elliott, and authorities referred to in both, there appears to have been some evidence of what I have described as “the relationship”, whereas here there is no evidence save for the assertion by the police members that the plaintiff in this case has attended that medical clinic after the events of 11 and 12 October 2004.
17 Mr Monti, in reply, informed me that the plaintiff will not be calling any evidence from any of the medical practitioners who practise from the medical clinic. I assume that was submitted to reinforce the claim of medical privilege; however, in Ginnity, her Honour did not consider that such a position maintained by the legal representatives was, of itself, sufficient to dispose of the question of waiver. Her Honour considered that it was necessary to consider how the plaintiff intended to put her case, but also to consider the questions of unfairness and inconsistency.[7]
[7]at paragraph [23]
18 If the plaintiff had been treated by medical practitioners at that medical centre and there was some inevitability that he would give evidence about that treatment, then that would amount to an implied waiver or issue waiver. At present, there is no evidence upon which I can conclude that there was a relationship of the kind evident in Ginnity and Elliott which underwrote the rulings that to not release the relevant documents for inspection would amount to unfairness and inconsistency.
19 Therefore, I propose to order that the subpoena be set aside.
The Police members’ subpoena – Corrections Victoria
20 This application was made by Mr Lawrie, and resisted by Mr Monti and Mr McDonald.
21 The police members served a subpoena, pursuant to r42A.03(1), dated 4 April 2014, on the proper officer of Corrections Victoria. The subpoena requires the production of:
“1All Melbourne Custody Centre and logged in prison records pertaining to Bariyow Ahmet (also known as Bariow Hussein), (DOB: 7 May 1973), including: all clinical and medical notes, records of assessment and reports.”
22 The submissions made by Mr Lawrie and by Mr Monti were almost identical to those made in connection with the subpoena directed to the Wellington Street Medical Centre. I propose to order that the subpoena be set aside, because it bears out the same characteristics as the other subpoena which I think militate against permitting inspection of the documents.
The Police members’ Interrogatories
23 This application was made by Mr Lawrie, and resisted by Mr Monti and Mr McDonald.
24 The police members delivered Interrogatories for the examination of the plaintiff dated 29 July 2013. The plaintiff swore Answers to those Interrogatories on 12 September 2013 and Supplementary Answers on 7 November 2013. Mr Lawrie submitted that the plaintiff must be required to provide further and better Answers. Mr Monti submitted that the police members’ Interrogatories are so defective that no such order should be made.
25 No issue was taken by the police members to the Answers to Interrogatories 1 to 6. It is the Answers to Interrogatory 7 and following which are the subject of challenge.
26 Interrogatory 7 asks: “On the said date was Kathleen Emerson in the premises with you?” It must be remembered that the events of 11 and 12 October 2004 occurred at a particular time when the police members attended at his premises and arrested him. The Interrogatory is too wide. If it was intended to ask whether Kathleen Emerson was in the premises with the plaintiff at the time when the police members attended and arrested him, then the Interrogatory would be anchored to a timeframe which would require an answer. As it is, it is too wide.
27 Interrogatory 8 is premised on an affirmative answer to Interrogatory 7. As a consequence of the defect in Interrogatory 7, it must follow that Interrogatory 8 cannot be answered.
28 Interrogatories 9 and 10 are premised on an affirmative answer to Interrogatory 2 and 7. To understand Interrogatory 2 it is necessary to go back to Interrogatory 1. Interrogatory 1 asks whether the plaintiff heard a person or persons knocking on the front door of his premises. He answered “No”. Interrogatory 2 asks, in effect, that if the plaintiff did hear a person or persons knocking on his door, did they identify themselves as police. He referred to his Answer to Interrogatory 1, that is, he did not hear anyone knocking at the door, and therefore, did not hear anyone identify themselves as police. Therefore, there is no affirmative answer to Interrogatory 2 requiring an answer to Interrogatories 9 and 10. Furthermore, no answer is required based upon an affirmative answer to Interrogatory 7 for reasons going to the defect in Interrogatory 7.
29 Interrogatory 11 asks whether the plaintiff consumed any intoxicating liquor in a period of 1 to 24 hours before that time defined in Interrogatory 1, which is 2.10am. It is irrelevant, because it is not an issue between the parties raised in the pleadings.
30 Interrogatories 12 to 26, 29 and 32 to 30 are very poorly drawn. The defect in those Interrogatories commences with Interrogatory 12, which is incredibly wide and irrelevant. It asks what activities the plaintiff was engaged in 20 minutes before the front door opened. It assumes that the plaintiff admits that the front door was opened at a particular time, making the Interrogatory relevant to an issue between the parties. Interrogatories 13 to 18 also are premised on that assumption. Interrogatories 19 to 26 are not connected spatially or temporally to any events in issue between the parties. Interrogatory 29 returns to the assumption that the plaintiff admits that the front door was opened at a particular time. Interrogatories 31 to 35 are not connected spatially or temporally to any events in issue between the parties. Interrogatory 36 assumes that the plaintiff admits that the police members conveyed him to a police station and that he was under arrest.
31 Drafting interrogatories requires some skill. None is evident in the drafting of these Interrogatories. An interrogatory is defective when the facts underlying the interrogatory are not adequately defined so that the person answering the interrogatories does not have to guess about what the interrogatory is directed to and what answer should be given. For example, any number of alternatives could have been drafted to ask the plaintiff whether the police members attended his premises in order to obtain an answer from him which would then provide the platform upon which other interrogatories could be based to enquire of him what then happened and who was involved, and who did what and when.
32 Although I accept that Mr Lawrie was following his instructions in attempting to support the viability of the Interrogatories, the attempt was unjustified, and any experienced practitioner perusing the interrogatories should have readily conceded that overall they contain such serious defects that they could not be supported.
33 Although Interrogatories 27, 28 and 30 are based upon the Amended Statement of Claim, I do not propose to require the plaintiff to answer any of the Interrogatories because of serious, extensive and systemic defects in them.
The Fifth Defendant’s Answers to Interrogatories
34 This application was made by Mr Monti and Mr McDonald, and was resisted by Mr Lawrie.
35 The fifth defendant (“Jardine”) applied to the Court to have a litigation guardian appointed. That Order was made, which permitted Jardine to have her Answers to the plaintiff’s Interrogatories sworn by her Litigation Guardian, Michael Prowse (“Prowse”). I do not propose to delve into the basis upon which that Order was made, except to say that the evidence I perused at a previous Directions Hearing pointed to Jardine being in a parlous psychiatric state. The plaintiff served Interrogatories for the examination of Jardine dated 29 July 2013.
36 Mr Monti submitted that the basis upon which Prowse answered the Interrogatories is impermissible, and the form of the Answers does not make it clear whether Prowse is making the Answers for himself as if he is the party being interrogated, as opposed to answering them on behalf of Jardine in accordance with the requirements of r30.05. Mr Lawrie, essentially, submitted that Prowse answered the Interrogatories in the only way in which it could be done given Jardine’s parlous psychiatric state.
37 Rule 30.08(1)(a)(ii) provides that where the person being interrogated is under a disability, the interrogatories must be sworn either by that person or that person’s litigation guardian. If the answers to interrogatories are to be sworn by that person’s litigation guardian, then the litigation guardian is obliged to answer the interrogatories in accordance with r30.05. That rule requires interrogatories to be answered:
· from the litigation guardian’s own knowledge, or where he has no knowledge, from his belief as to a fact or matter;
· where the litigation guardian has no personal knowledge, then he is required to “make all reasonable enquiries to determine whether any person has knowledge of the fact or matter”.
38 Rule 30.06(1) requires the litigation guardian to answer each interrogatory specifically by answering the substance of the interrogatory without evasion and if it is objectionable, then to make that objection based upon the available grounds referred to in r30.07.
39 In the preamble to the Answers to Interrogatories, Prowse identifies himself as Litigation Guardian with authority to swear the Answers to Interrogatories on behalf of Jardine, and, secondly, identifies that he was not involved and has no personal knowledge of the matters enquired of by the plaintiff; however, he then says that he makes the Answers to Interrogatories on behalf of Jardine based upon relevant documents and records discovered in this proceeding. That is not a basis for answering interrogatories justified by r30.05. Nowhere does he say whether he has made all reasonable enquiries of Jardine, nor does he say that he has made enquiries of any other persons who might have knowledge of the facts or matters enquired after, or what his belief is. I think the preamble should have been structured differently to encompass what his obligation is under r30.05.
40 Mr Monti provided me with a written outline of the plaintiff’s challenge to particular Answers to Interrogatories. I have examined the Interrogatories and the Answers carefully. I am satisfied that the content of the Answers are satisfactory, but I am not satisfied that Prowse has been advised by the solicitors for the Police members of what his obligation is under r30.05 in taking those relevant steps before formulating any answers. It may be that the Answers he has given will remain the same after he has discharged the obligation under r30.05, but I propose to order that he provide further and better answers in conformity with his obligation under r30.05. It should be noted by those advising Prowse, and settling his Answers, that the Answers are not his, that is, he is not the party being interrogated. The party being interrogated is Jardine, so Prowse must answer the Interrogatories as closely as possible to the position of Jardine as the interrogated party. That distinction must be borne in mind.
The Police members’ subpoena – the Chief Commissioner of Police
41 This application was made by Mr Lawrie, and was resisted by Mr Monti and Mr McDonald.
42 The police members served a subpoena, pursuant to r42A.03(1), dated 12 November 2013, on the Chief Commissioner of Police. The subpoena requires the production of:
“1All leap records pertaining to Bariyow Ahmet (also known as Bariow Hussein), (DOB: 7 May 1973), including:
Criminal history;
Criminal Charges and Convictions;
Person History Reports;
Warning Flags;
Involvements;
Sub Incident Summary Reports; and
Field Contact Record Enquiries.”
43 Rule 42A.01(1) applies where a party seeks to require a person, who was not a party to the proceeding, to produce any document “for evidence” before the hearing of an interlocutory or other application in the proceeding, or before the trial of the proceeding. What is clear by the terms of the Rule is that it only authorises the issue of the subpoena where the documents may be potentially admissible as evidence in the proceeding.
44 According to the police members Defence, a criminal jury found the plaintiff guilty of the offences of rape, false imprisonment, assault and intentionally causing injury on 18 September 2007. I understand that the victim of those criminal offences was Kathleen Emerson. Mr Lawrie submitted that the Police members intend to inspect the documents for the purpose of admitting them into evidence to demonstrate that the plaintiff has a tendency to behave in a manner consistent with the criminal offences with which he was not only charged, but in relation to those for which he was found guilty by the criminal jury.
45 Evidence of the character, reputation or conduct of the plaintiff, or a tendency which the plaintiff has or had, is admissible to prove that the plaintiff has or had a tendency to act in a particular way or had a particular state of mind, subject to compliance with s97(1) of the Evidence Act 2008. The police members must give reasonable notice in writing to the plaintiff of their intention to adduce that evidence, and it will be admissible where the Court thinks that the evidence will either, by itself, or having regard to other evidence adduced or to be adduced by the police members, have significant probative value.
46 The first hurdle which the police members must surmount is where the evidence is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case,[8] or where it appears to be on the cards that the documents will materially assist the defence.[9] In Newnham v Davis,[10] Kaye J considered the test enunciated in both of those authorities, and concluded that there is probably little difference between the two tests.[11] His Honour also helpfully observed that at this stage in a proceeding, that Court has, at best, only a general conception of the issues in the proceeding and the nature of the evidence which is to be adduced in relation to the issues.[12] That observation is apposite to the position I find myself in, struggling to determine whether it is on the cards that the documents will materially assist the Police members in adducing tendency evidence.
[8]Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, 927
[9]Alister v R (Ananda Marga Conspiracy/Hilton Bombing case) (1984) 154 CLR 404, 414
[10][2010] VSC 13 at paragraphs [7] and [8]
[11]See also Ragg v Magistrates’ Court of Victoria & Anor (supra) at 323-324, paragraphs [94] - [96]
[12]at paragraph [9]
47 In Yunghanns v Candoora No 19 Pty Ltd,[13] Byrne J made a number of helpful observations regarding the threshold which a party needs to establish in order to be entitled to inspect documents the subject of a subpoena. His Honour said:
“The requirement in r42.10(1) that the document be produced for evidence includes a possibility that the document be produced and inspected by a party to enable it to determine whether to adduce the document in evidence. In a case such as the present, this would include a decision whether to include the document in the Court Book. The test of relevance at this stage, therefore, is a very general one. The court, which at this stage has only a general idea of the nature of the evidence which may be led as relevant to an issue or as to credit of an expected witness, should not be unduly astute to reject the possibility that a document does not meet this test of relevance. Indeed, it may be that it will so conclude only where it appears that no useful evidentiary purpose could be attributed to the document, raising in this way an inference that the order for production is sought for some illicit purpose, or for no good purpose. I am not satisfied that the documents referred to in any of the subpoenas here in question fail to satisfy this applicable test of relevance.”[14]
(Emphasis added).
[13][2000] VSC 505 at paragraph [12]
[14]The observation was sited with approval by Kaye J in Newnham.
48 The evidence going to tendency will be limited to evidence demonstrating the plaintiff’s tendency to behave in a particular manner when confronted by Police officers. In a very recent decision of the Court of Appeal in Velkoski v The Queen,[15] it made the following observations relevant to the admission of tendency evidence:
[15][2014] VSCA 121
“The provisions of the Evidence Act dealing with tendency and coincidence evidence should be viewed as a code. None of the common law principles that formerly governed this branch of the law are any longer binding in this area.
Where there is an absence of remarkable or distinctive features in the manner in which the offences are committed, the difference in the law as stated by this Court and the New South Wales Court of Criminal Appeal has left the law in a state of uncertainty as to the degree of similarity in the commission of the offences or the circumstances which surround the commission of the offences that is necessary to support tendency reasoning. One line of authority has held that some degree of similarity in the acts or surrounding circumstances is necessary before it will be sufficient to support tendency reasoning. Another line of New South Wales authority, that has not been followed in Victoria, has emphasised that tendency reasoning is not ‘based upon similarities,’ and evidence of such a character need not be present. These lines of authority within each Court are not readily reconcilable.
Section 97(1)(b) is intended to address the risk of an unfair trial through the use of tendency reasoning by ensuring a sufficiently high threshold of admissibility. We consider the approach currently taken by the New South Wales Court of Criminal Appeal to tendency and coincidence goes too far in lowering the threshold to admissibility. To remove any requirement of similarity or commonality of features does not in our respectful opinion give effect to what is inherent in the notion of ‘significant probative value.’ If the evidence does no more than prove a disposition to commit crimes of the kind in question, it will not have sufficient probative force to make it admissible. This view, we think, clearly represents the present position of our Court reflected in the long line of authority to which we have referred.
It is unfortunate that the law regarding tendency and coincidence evidence appears to have developed along divergent paths in New South Wales and Victoria. In the meantime, and recognising that much of what we have said may be of historical interest only, it might be of use to trial judges in this State if we formulate the principles that we think govern the operation of ss 97 and 98 in Victoria.
In relation to tendency evidence, it remains necessary to identify and assess the strength of the features of the acts relied upon as supporting tendency reasoning. Odgers, in his Uniform Evidence Law in Victoria sets out a list of features which include the following:
(i) the number of occasions upon which the particular conduct relied upon is said to have occurred;
(ii) the time gap between those occasions;
(iii) the degree of similarity between the conduct on those occasions;
(iv) the degree of similarity of the circumstances in which that conduct took place;
(v) whether the tendency evidence is disputed, and
(vi) the issue to which the evidence is relevant.
As to the last matter, it has been suggested that tendency evidence may have greater probative value in proving conduct than in identifying an offender.
We have not included the relationship between offender and victims amongst the relevant operative features. Save where all the tendency evidence and charged acts relate to the same victim, the circumstance will be most unusual in which the relationship between the offender and the victims could by itself be sufficient to amount to tendency evidence. The exception may be where the nature of the relationship between the offender and the victims is so entirely remarkable and out of the ordinary (in which case the evidence would also support coincidence reasoning). But in the not so uncommon situations of parent and child or teacher and pupil, some other features of similarity must be present. Commonality of relationship between offender and victim will not ordinarily be sufficient.
Neither tendency nor coincidence evidence requires proof, as a condition of admissibility, of ‘striking similarity’. Nor should a trial judge ask whether it would be ‘an affront to common sense’ to withhold evidence of that kind from the jury. Such expressions, taken from the common law, are unduly restrictive when it comes to the construction of the relevant provisions of the Evidence Act.
Nonetheless, some cases may meet even that higher threshold test. In that event, the task for the trial judge is likely to be relatively straightforward. The evidence will certainly satisfy the requirements of ss 97 and 98. It will almost certainly also satisfy the requirements of s 101.
The features relied upon must in combination possess significant probative value which requires far more than ‘mere relevance’. In order to determine whether the features of the acts relied upon permit tendency reasoning, it remains apposite and desirable to assess whether those features reveal ‘underlying unity’, a ‘pattern of conduct’, ‘modus operandi’, or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the tendency evidence its relative strength.”[16]
[16]at paragraphs [162] - [171] – footnotes deleted
49 I am inclined to permit the inspection of the documents because of the observations made by Byrne J in Yunghanns that the test of relevance is a general one, and I should not be unduly astute in rejecting the possibility that the documents do not meet the test of relevance. Whether the evidence is admissible depends upon the notice which the Police members are required to give under s97(1)(a) and whether the judge at trial considers that the evidence is of significant probative value.
50 I must add that I think the plaintiff and the Police members’ interest in evidence of tendency in coincidence is a potentially fruitless exercise. What the Court of Appeal has said in Velkoski suggests to me that what is likely to be thrown up through a perusal of the documents is very unlikely to conform to what is required in demonstrating that there is any probative value in that evidence.
The Plaintiff’s subpoena – Chief Commissioner of Police
51 This application was made by Mr Monti and Mr McDonald, and was resisted by Mr Dinelli.
52 The plaintiff served a subpoena, pursuant to r42A.03(1), dated 28 March 2013 on the Chief Commissioner of Police. The subpoena requires the production of:
“Any and all written or electronically stored records of complaint made by any person against the police officers name[d] below involving assault, false imprisonment, or excessive use of force carried out whilst on duty and any and all written or electronically stored recorded outcomes of any such complaints including the complainant(s) in their entirety, or any particular(s) of the complaint(s), was substantiated:
·Mark Robertson (Second Defendant)
·Nick Konstantinidis (Third Defendant)
·Timothy Verrenkamp (Fourth Defendant)
·Melissa Jardine (Fifth Defendant)
Any and all written or electronically stored records of preliminary investigations made under section 70 of the Police Regulation Act 1958 where those preliminary investigations resulted in support and re-determinations under section 73 of the Police Regulation Act 1958 and disciplinary determinations made under section 73 of the Police Regulation Act 1958 with respect to charges laid for disciplinary breaches of sections 69 (1) (c), (e), (f), (h) and (l) and 69 (2) of the Police Regulation Act 1958 with respect to:
·Mark Robertson (Second Defendant)
·Nick Konstantinidis (Third Defendant)
·Timothy Verrenkamp (Fourth Defendant)
·Melissa Jardine (Fifth Defendant)”
53 Mr Dinelli submitted that the documents are not relevant, and, additionally, the documents are protected by public interest immunity.
54 Mr McDonald submitted that the documents are relevant and will be admitted into evidence to demonstrate a tendency on the part of the Police members to act in a particular way, and that their conduct is not coincidence. The coincidence rule is referred to in s98(1) of the Evidence Act 2008. It requires that the Police members must give reasonable notice in writing to the plaintiff of their intention to adduce that evidence, and it will be admissible where the Court thinks that the evidence will either by itself or having regard to other evidence adduced, or to be adduced by the Police members, have significant probative value.
55 I spent some time reviewing a number of authorities relevant to the question of relevance when dealing with the issue of the Police members’ subpoena served on the Chief Commissioner of Police. The same principles apply to this subpoena. If it were not for the claim that the documents are protected by public interest immunity, I would be inclined to permit inspection of the documents for much the same reasons.
56 The claim for public interest immunity is to be found in s130(1) of the Evidence Act 2008:
“If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.”
57 Subsection (4) provides:
“Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State … .”
58 Mr Dinelli referred me to an affidavit of Ms Nadine Elise Harrison, who is a Sergeant of Police with the Disciplinary Advisory Unit of the Professional Standard Command, sworn by her on 12 June 2014. In summary, Ms Harrison described the likely impact of disclosure of the documents sought as follows:
“41Public disclosure of PSC files will reveal investigative methods utilised by IBAC and PSC and methods of intelligence gathering. Such disclosure would tend to alert persons of interest to the investigative methods employed by the PSC and/or IBAC.
42Disclosure of PSC files may also reveal information obtained by compulsory IBAC or PSC processes or confidential communications passing between the PSC and IBAC. In some cases, there is a discussion between IBAC (or, in earlier years, the Ombudsman) and PSC regarding the preferable way to approach or regard a complaint. Disclosure may impede the free and frank exchange of information between these organisations, which would consequently undermine the effective performance of their respective investigative functions.
43Public disclosure of PSC files may prejudice the fearless and thorough investigation of police complaints. It is usual for those who are investigating complaints to be very frank in their assessment of evidence and to make strong comments on the strength of evidence or the veracity of witnesses. This is an important part of the process and it occurs in an atmosphere of complete confidentiality where in many cases the complainant and the subject member will not see the views or comments of the investigators in full but rather will only see the summary which is sent to them. Public disclosure of opinions, advice and recommendations of PSC officers to their superior, and vice versa, tends to negatively impact on the free and frank exchange of information and opinions between senior police officers in respect of police complaints.
44The files falling within the scope of the Subpoena:
44.1 do not relate to the same period as the plaintiff’s claim; and/or
44.2 relate to allegations which were found to be unfounded, not substantiated or otherwise unproven; and/or
44.3 contain personal information received in confidence about a large number of persons other than the named police members; and/or
44.4 contain extensive details of deliberations and assessments by investigating officers, much of which will not have been made known to either the members concerned or the complainants and which was intended only for senior command within Victoria Police.
45The release of those files would prejudice the ability of Victoria Police to properly receive and investigate complaints against police members because:
45.1 it would disclose details of investigative processes used by PSC;
45.2 it would inhibit the open exchange of information and views within Victoria Police which is essential to the proper functioning of the investigative and disciplinary processes; and
45.3 it would reduce the willingness of complainants and members to participate in such processes.”
59 The passages from Ms Harrison’s affidavit outline the policy underwriting nondisclosure, and the practical impediments that may arise should disclosure of these documents be permitted.
60 Mr Dinelli referred me to Sankey v Whitlam,[17] and the observations of Gibbs ACJ, which he submitted reflects the long accepted common-law test:
“The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer (1968) AC, at p 940, as follows:
‘There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.’
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v. Rimmer (1968) AC, at p 940 , ‘the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it’. In such cases once the court has decided that ‘to order production of the document in evidence would put the interest of the state in jeopardy’, it must decline to order production.”[18]
[17](1978) 142 CLR
[18]At 38-39
61 What is clear from the affidavit of Ms Harrison is that the PSC is an investigative body which receives information from complainants regarding the conduct of Police. It is understandable that members the public might be reluctant to make complaints regarding the conduct of Police where their identity and the substance of their complaint might be disclosed to the Police officer against whom the complaint is made. That might well impair members of the public’s interest in making complaints, and might well impair the PSC in undertaking its obligation to investigate complaints against Police officers. No doubt the public has an interest in ensuring that where the conduct of Police officers is less than desirable, that members of the public be free to make complaints for the purpose of investigations being undertaken in order to maintain standards of Police conduct. I do not think any fair minded member of the public would complain about a system which maintains confidentiality, the identity of complainants, the substance of the complaint, the investigative process, the persons undertaking the investigation, and what conclusions the investigators might reach regarding the veracity or otherwise of the complainant, the Police officer in question, and other persons whose evidence might be of some assistance in the investigation.
62 Essentially, ss(4)(c), (d) and (e) capture the need to keep those processes confidential. The overriding consideration in ss(1) is to balance the public interest served by permitting disclosure, and whether that is outweighed by preserving confidentiality for the reasons referred to in Ms Harrison’s affidavit. That balancing exercise was, in substance, what Gibbs ACJ observed in Sankey as the duty of the Court.
63 I think the evidence of Ms Harrison is compelling. It is directly relevant to the receipt of complaints by the PSC relevant to the Police members and its dealing with those complaints. I consider that the evidence demonstrates that the public interest in preserving confidentiality outweighs the public interest in permitting disclosure of the documents.
Summary
64 The Orders I propose to make, therefore, are:
(a) The subpoena served by the second, third, fourth and fifth defendants on the proper officer of the Wellington Street Medical Centre dated 4 April 2014 is set aside.
(b) The subpoena served by the second, third, fourth and fifth defendants on the proper officer of Corrections Victoria dated 12 November 2013 is set aside.
(c) The application by the second, third, fourth and fifth defendants requiring the plaintiff to swear further and better answers to interrogatories dated 29 July 2013 is refused.
(d) The fifth defendant, by herself or by her Litigation Guardian, must swear further and better answers to the plaintiff’s Interrogatories dated 29 July 2013 on or before 4.00pm on 18 July 2014.
(e) The application by the plaintiff to set aside the subpoena served by the second, third, fourth and fifth defendants on the Chief Commissioner of Police dated 12 November 2013 is refused.
(f) Inspection of the documents produced by the Chief Commissioner of Police pursuant to the subpoena is permitted on a date to be agreed between the parties, or in the absence of agreement, at the direction of the Principal Registrar or her nominee, and before 4.00pm on 1 August 2014.
(g) The plaintiff is permitted to inspect documents first, and then followed by the second, third, fourth and fifth defendants.
(h) The application by the Chief Commissioner of Police to set aside the subpoena served on him by the plaintiff dated 28 March 2013 is granted.
Other observations
65 This proceeding has been hampered by the pursuit of interlocutory applications by the plaintiff and the second, third, fourth and fifth defendants, which I think are pointless given that the real issue between the parties is what occurred on a particular night and at a particular time. I think the parties had lost sight of what they will require the Court to determine as the triable issues.
66 I propose to make a further Order that no interlocutory steps, including the issue of subpoenas, be undertaken by any party without the leave of the Court. Any such application must be made to me on notice to the other parties.
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