Ahmet v State of Victoria (Ruling No 3)
[2015] VCC 867
•3 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
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: | 5 May 2015 | |
DATE OF RULING: | 3 July 2015 | |
CASE MAY BE CITED AS: | Ahmet v State of Victoria & Ors (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 867 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Public interest immunity – claim by Chief Commissioner of Police seeking documents relevant to complaints against police officers – s130 of the Evidence Act 2008 – documents contain material evidence – documents have important bearing on the ultimate decision in the proceeding
Legislation Cited: County Court Civil Procedure Rules 2008; Evidence Act 2008
Cases Cited:Ahmet v State of Victoria & Ors (Ruling) [2014] VCC 922; Ahmet v Chief Commissioner of Police [2014] VSCA 265; Alister v R (1984) 154 CLR 402; Newnham v Davis [2010] VSC 13; Messade v Baires Contracting Pty Ltd [2011] VSC 56; Woolworths Ltd v Svajcer [2013] VSCA 270; Ragg v Magistrates’ Court of Victoria and Corcoris (2008) 18 VR 300; Krew v Federal Commissioner of Taxation (1971) 2 ALJR 324; Sankey v Whitlam (1978) 142 CLR 1
Ruling: The Chief Commissioner of Police release to the applicant all of the documents contained in the folder provided to the Court in this application and permit inspection of the same at a time and place to be agreed by the parties, or failing agreement, by order of the Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr K McDonald | Flemington & Kensington Community Legal Centre |
| For the First Defendant | Mr S O’Meara QC with Mr L Brown | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
1 On 25 June 2014, I delivered an interlocutory ruling on a number of the issues. One of those issues concerned a subpoena served by the plaintiff on the Chief Commissioner of Police dated 28 March 2013 pursuant to Rule 42A.03(1) of the County Court Civil Procedure Rules 2008.[1]
[1][2014] VCC 922 (“the ruling”)
2 I ruled that the public interest in preserving confidentiality outweighed the public interest in permitting the disclosure of the subpoenaed documents. I did not inspect the documents to form a view about whether any damage might result from permitting production and inspection of the documents.
3 My ruling was appealed. The Court of Appeal delivered judgment on 24 October 2014.[2] The Court of Appeal held that I fell into error by not inspecting the subpoenaed documents for myself to form a view about whether any damage might result from permitting production and inspection of the documents.
[2][2014] VSCA 265 (“the Court of Appeal ruling”)
4 I do not propose to repeat much of the evidence I referred to in the ruling. I think it is sufficient to say that I relied upon an affidavit sworn by Ms Nadine Elise Harrison, Sergeant of Police with the Disciplinary Advisory Unit of the Professional Standard Command, which was sworn by her on 12 June 2004.[3]
[3]The ruling, paragraphs [58]-[59] and [61]
5 In setting aside the Orders I made, the Court of Appeal relevantly observed:
“In our view, his Honour erred in acting on the basis of the general statements made by Sergeant Harrison, rather than by inspecting the subpoenaed documents for himself and forming a view about whether any damage might result from disclosure. In the absence of his Honour having a good appreciation of the substance of the information that the Chief Commissioner contends is ‘sensitive’ in the public interest and the potential damage that would likely result if it were disclosed in the context of the litigation, no proper weighing of the merits of the competing claims could be undertaken.”[4]
[4]The Court of Appeal ruling, paragraph [28]
6 Later, the Court of Appeal also relevantly observed:
“In the absence of knowing what information is contained in the complaint files, it is difficult to see how his Honour could have undertaken any real balancing of the competing public interests. In our view, where the claim for immunity is a ‘contents’ claim, that exercise will normally require the judge to inspect the documents for the purpose of making a decision on whether or not the claim is made out.”[5]
[5]The Court of Appeal ruling, paragraph [32]
7 The Court of Appeal then made the following Order, among others:
“4Orders 8 and 10 of the orders made by his Honour Judge Misso made on 25 June 2014 are set aside.
5 In lieu thereof it is ordered that:
(a)the applicant’s subpoena directed to the Chief Commissioner of Police be remitted to his Honour Judge Misso for reconsideration of any objection to production or inspection.”
8 Order 8 of my ruling granted the application of the Chief Commissioner of Police to set aside the subpoena, and Order 10 was an Order for Costs in favour of the Chief Commissioner of Police.
The further hearing
9 On 5 May 2015, the proceeding was remitted to me for the purpose of re-considering the matter by inspecting the documents produced pursuant to the subpoena.
10 Mr K McDonald of counsel appeared for the plaintiff and Mr S O’Meara QC appeared with Mr L Brown of counsel for the Chief Commissioner of Police.
11 Initially, there was debate about what had been remitted for my reconsideration. Mr McDonald submitted that what had been remitted was confined to a reconsideration of public interest immunity. Mr O’Meara submitted that the Order of the Court of Appeal did not so confine the scope of what I was to reconsider. It appears to me to be plain from the language of Order 5(a) that the reconsideration is a fresh hearing on all issues. This is particularly clear because the Order permits reconsideration of “any objection to production or inspection” raised by the Chief Commissioner of Police.
12 The need to interpret the Order of the Court of Appeal arose because Mr Brown, at a previous directions hearing, applied to adduce further evidence by affidavit. Mr McDonald objected to that course. I propose to allow the Chief Commissioner of Police to adduce the evidence of Mr Anthony Ryan, Inspector of Police, in an affidavit sworn 27 April 2015. It appears to me to raise some relevant evidence going to the objection to production or inspection of the documents by the Chief Commissioner of Police.
The documents
13 At the hearing on 13 June 2014, I was informed by Mr A Dinelli of counsel, who appeared for the Chief Commissioner of Police, that the documents were in two large suitcases which he pointed to from the bar table. Although Mr McDonald submitted that I should inspect the documents, no effort was made by either the plaintiff or the Chief Commissioner of Police to put the documents in a form which would enable me to inspect them in an effective manner so that I could be informed of the contents of the documents.
14 On 5 May 2015, those two large suitcases had been broken down into one arch lever folder of documents (“the folder”). I was not informed how the documents in the suitcase had been broken down in that way, but I was confident from the submissions made by Mr McDonald and Mr O’Meara that the folder contained all of the documents that I now must inspect in undertaking the process of reconsideration.
Legitimate forensic purpose
15 It was submitted on behalf of the Chief Commissioner of Police that the documents sought lack a legitimate forensic purpose. I disagree.
16 I think it is “on the cards” that records of complaint made against the relevant police officers of assault, false imprisonment or excessive use of force, will “materially assist”[6] the plaintiff’s cause of action where tendency and coincidence evidence is intended to be relied upon.
[6]Alister v R (Ananda Marga Conspiracy/Hilton Bombing case) (1984) 154 CLR 404 at 414; While this test is said to be specifically relevant to criminal cases: Newnham v Davis [2010] VSC 13 at paragraphs [7]-[9]; it also finds appropriate application in civil cases: Messade v Baires Contracting Pty Ltd [2011] VSC 56 at paragraph [6]
17 Having subsequently inspected the documents, as I am entitled to,[7] the apparent legitimacy of the subpoena’s forensic purpose is confirmed. On this point, the reasoning which I have articulated regarding the document’s importance and relevance, in connection with the question of public interest immunity, applies equally.[8]
[7]Woolworths Ltd v Svajcer [2013] VSCA 270 at paragraph [43]
[8] See Ragg v Magistrates’ Court of Victoria and Corcoris (2008) 18 VR 300 at paragraph [97]
Public interest immunity – legal principles
18 I set out the relevant provisions of the Evidence Act 2008 in the Ruling. I propose to review the provisions of the Act and a number of authorities before turning to the content of the documents in the folder.
19 The Chief Commissioner of Police relies upon s130(1), which is in the following terms:
“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.”
20 Section 130(4) refers to a number of considerations which may be taken into account for the purpose of identifying the scope of ss(1). The relevant considerations appear to be:
“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—
…
(c)prejudice the prevention, investigation or prosecution of an offence; 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 … .”
21 Additionally, s130(5) requires me to take into account a number of other matters for the purposes of ss(1). The relevant part of s130(5) to the process of reconsideration is as follows:
“Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters –
(a)the importance of the information or the document in the proceeding … .”
22 There are a number of authorities which are of assistance in interpreting what the legislature intended in ss(5)(a) by its use of the word “importance”. I propose to refer to only two of those authorities which I note have been referred to in subsequent authorities with approval. The first is Alister v R,[9] in which Gibbs CJ relevantly observed:
“Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process — the balancing exercise — can only be taken when it appears that both aspects of the public interest do require consideration — i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. But the anterior question arises — should the court look at the documents to assist it in answering these questions?”[10]
[9](1984) 154 CLR 402 at 412
[10]Alister v R (supra) at paragraph [4]
23 The second is Krew v Federal Commissioner of Taxation,[11] in which Walsh J observed:
“… What matters at present is whether there is anything in the documents with which I am now dealing from which it could be seen that the production of them may have such an important bearing upon the ultimate decision of these questions that this ought to be regarded as outweighing in this case the public interest which would require that they ought not to be produced except for compelling reasons.”
[11](1971) 2 ALJR 324
24 The reference in s130(5)(a) to “the importance of … the document in the proceeding” must be interpreted to mean that the documents are more than just relevant to the proceeding, but must contain material evidence or must have an important bearing upon the ultimate decision in the proceeding.
25 Furthermore, there is also authority for the trite proposition that immunity from disclosure is not automatically accorded to documents when there is a claim of public interest immunity. It is a matter of weighing up the public interest in granting immunity against the public interest in permitting proper administration of justice where documents should be available to a party seeking to litigate a cause of action in a proceeding.[12]
[12]Sankey v Whitlam (1978) 142 CLR 1 at paragraphs [58[-[59] and [95]-[96]
26 Therefore, the approach which I consider I must take is:
·Firstly, to determine what the public interest is in permitting and denying production and inspection of the documents.
·Secondly, in order to determine whether the documents should be produced and inspected, I must balance the harm which would be done if I order production and inspection of the documents, against the frustration or impairment to the administration of justice were the documents withheld.
·Thirdly, in the course of undertaking that balancing exercise, I must not only have regard to the relevance of the documents, but more importantly, the importance of the documents in the plaintiff’s proceeding, importance amounting to whether the documents contain material evidence and will have an important bearing on the ultimate decision in the proceeding.
Balancing the public interest
27 I have said as much as I need to about the principles of law which I consider to be relevant to the process of reconsideration which I have embarked upon. In undertaking the process of reconsideration, I firstly return to the substance of the evidence of Ms Harrison, which I referred to in paragraph 58 of the ruling. That evidence appears to be directed to considerations referred to in s130(4)(c) and (e).
28 At paragraph 61 of the ruling, I summarised the public interest considerations in favour of denying production and inspection of the documents, as follows:
“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.”
29 I next turn to the substance of the affidavit of Mr Ryan which builds upon the evidence of Ms Harrison. I am not convinced that the affidavit is of any particular value to me in undertaking the process of reconsideration. Paragraph 8 identifies, in a table, documents which Mr Ryan says have been gleaned from a search of documents which fall into the terms of the subpoena. They are the same documents contained in the folder. In paragraphs 9-14, he refers to the need to keep sources of information confidential, essentially because members of the public informing on members of Victoria Police may be deterred from making complaints if they are of the belief that the substance of their complaints and their identity were not kept confidential. Paragraph 11 refers to the age of some of the complaints, and paragraph 15 refers to the fact that ten files relate to complainants who are now deceased.
30 Mr Ryan’s affidavit contains evidence which is relevant to the identity of the documents and their contents, and the important question of confidentiality. In other respects, his affidavit deposes to matters which are of little relevance. He expresses his own opinion on matters which are for me to determine, and he makes a number of assertions of law, and in fact in paragraph 14, he referred to a number of authorities containing principles of law, which I think is entirely inappropriate and not something which should be referred to in an affidavit which is intended to be evidence.
31 I now turn to consider the public interest in favour of production and inspection.
32 The lens through which I must look is the plaintiff’s cause of action. The plaintiff alleges that on 11 and 12 October 2014, 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 by them, he was allegedly conveyed to a police station, where he was assaulted again. 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.
33 In an Amended Statement of Claim dated 15 May 2013, the plaintiff has pleaded that he was falsely imprisoned, battered and maliciously prosecuted by the police members.
34 The documents sought by the plaintiff are intended to be used by the plaintiff “… to demonstrate a tendency on the part of the police members to act in a particular way and that their conduct is not coincidence …[and] to argue before a jury that coincidence reasoning can properly permit the finding that some or all of the defendants have the tendency to engage in behaviour of the type alleged in the pleading”.[13]
[13]Section 97(1) and 98(1) of the Evidence Act 2008. That was the Court of Appeal’s summary of the plaintiff’s purpose in seeking the production and inspection of the documents – the Court of Appeal ruling, paragraph [10]
35 The documents are relevant to the police members in this proceeding. They demonstrate conduct on the part of some of the police members of confrontation with members of the public, resulting in allegations by members of the public of assault, battery, false imprisonment, and heavy-handed and unjustified treatment. I think that the documents contain material evidence and will have an important bearing on the ultimate decision in the proceeding, given that the plaintiff intends to rely upon tendency and coincidence.
36 I consider that to refuse production and inspection of the documents would frustrate and impair the administration of justice. It would deny the plaintiff the right to rely on the statutory provisions which permit reliance on evidence of tendency and coincidence. In the end, I consider that the public interest is predominantly served by production and inspection of the documents.
37 I propose to make the following orders:
38 The Chief Commissioner of Police publish to the plaintiff all of the documents contained in the folder provided to the Court in this application and permit inspection of the same at a time and place to be agreed by the parties, or failing agreement, by order of the Court.
39 I will now hear the parties on the question of costs, and what other orders are to be made, and fixing the proceeding for trial.
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