Armstrong v State of New South Wales

[2021] NSWSC 1718

Supreme Court

New South Wales

Medium Neutral Citation:

Armstrong v State of New South Wales [2021] NSWSC 1718

Hearing dates:

30 July 2021

Date of orders:

30 July 2021

Decision date:

30 July 2021

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1) The defendant is excused from compliance with UCPR 31.10(1) in respect of the audio visual recordings in “Exhibit RTH2 – 191381” to the Affidavit of Rachelle Harrington sworn 29 July 2021.

(2) Pursuant to section 7 of the Court Suppression and Non Publication Orders Act 2010, and on the grounds appearing in section 8(1)(e) thereof, until 1 September 2021 or such earlier time as the defendant raises in open Court the contents of Exhibit RTH2 – 191381 to the affidavit of Rachelle Harrington sworn 29 July 2021, the publication of the Orders made on this application, the application itself, the affidavit of Rachelle Harrington sworn 29 July 2021 and any transcript of the hearing of the application are suppressed.

(3)   Order 2 shall operate throughout the Commonwealth.

(4) The terms of these orders, the Court’s reasons, the transcript of this application and the material relied on, shall be placed in an envelope marked “Confidential: Order pursuant to UCPR r 31.10 – not to be opened without the leave of a judge of the Court”.

(5)   Orders 1 to 3 are not to be published on Justice Link until Order 2 expires.

Catchwords:

PRACTICE AND PROCEDURE – personal injury proceedings – CCTV and body cam footage of plaintiff – whether defendant should be excused from service on plaintiff – ex parte application – not heard by trial judge – confidentiality order re application

Legislation Cited:

Court Suppression and Non-Publication Orders Act2010

Uniform Civil Procedure Rules, r 31.10

Cases Cited:

Halpin & Others v Lumley General Insurance [2009] NSWCA 372, [2009] 78 NSWLR 265

Latimer v Day [2015] NSWSC 11

Category:

Procedural rulings

Parties:

Brett Armstrong (Plaintiff)
State of New South Wales (Respondent)

Representation:

Counsel:
N Regener, ex parte (Respondent)

Solicitors:
Makinson d'Apice Lawyers (Respondent)

File Number(s):

2019/59287

Publication restriction:

See orders (2) to (5)

EX TEMPORE Judgment

1. This is an application by the defendant in pending proceedings to be excused from the operation of the Uniform Civil Procedure Rule 31.10(1) and some ancillary orders.

2. Before addressing that application, it is necessary to describe the proceedings. The plaintiff, Brett Armstrong, has sued the State of New South Wales for personal injury arising out of what he contends was an assault upon him during an unlawful arrest by police officers. The final hearing of the proceedings is listed to commence on 9 August 2021, Mr Armstrong having previously obtained expedition.

3. The trial judge listed to hear the matter is Davies J. For the reasons that will become obvious, it was considered not appropriate for his Honour to hear this application. To my understanding, his Honour is not aware of any aspect of its contents.

4. Read in support of the application was an affidavit of Rachelle Harrington dated 29 July 2021. In that affidavit Ms Harrington sets out in broad terms the nature of the injuries and ongoing disabilities that the plaintiff claims that he suffered as a result of the actions of the police officers to whom I referred. In particular, her affidavit sets out a summary of his current complaints and refers to the reports of various medical practitioners who no doubt, based on what they were told by the plaintiff, have opined about his restrictions.

5. Perhaps the most significant of those is a diagnosis set out in a report of Dr Stephen Buckley dated 4 February 2020. Mr Buckley is a consultant physician in rehabilitation medicine. His report contains a diagnosis that the plaintiff has "incomplete quadriplegia with lower limb spasticity Clonus, hyperreflexia and extensor plantar responses causing him to have impaired balance and requirement for gait with a walking stick."

6. Ms Harrington refers to other ongoing disabilities said to have been suffered by the plaintiff including difficulty looking up and down which causes him to fall over and incur significant stiffness from side to side, an assertion that he is unable to pick up heavy weights or undertake domestic chores, that he is unable to work due to pain and has a tendency to shake. It is said in the proceedings that he cannot carry out normal fitness exercises including running and walking, that he is unfit to carry out ordinary handyman duties or ordinary housekeeping duties. He says he is unable to drive without assistance.

7. A report of a psychiatrist relied upon by the plaintiff records the plaintiff as having said that he does not undertake house cleaning, gardens or mowing the lawn and he needs assistance with domestic chores.

8. The defendant has obtained a significant amount of audio-visual material which on its face appears to be inconsistent with those complaints. That material is set out in a USB drive which constitutes exhibit RTH2-191381 to Ms Harrington's affidavit. I was given the opportunity to view that material. It does not, as is commonly the case in matters of this kind, consist of surveillance material prepared by the defendant for the purposes of these proceedings per se. Instead, it consists of what appears to be recordings either taken by neighbours or from surveillance cameras on the neighbours' property which features the plaintiff as well as body-cam footage from a number of interactions between the plaintiff and police this year.

9. In her affidavit, Ms Harrington has summarised the effect of this material. Her summary appears to be accurate. The footage includes an instance on 15 January 2021 where the plaintiff is being spoken to by police about who was driving his motor vehicle on a particular day. During that conversation he is wearing work gloves. He appears to be holding an airline, ie, the video footage gives the impression that he has temporarily halted whatever work he was doing to speak to them.

10. The material also includes CCTV footage apparently taken on 8 May 2021 which records the plaintiff walking reasonably quickly past the neighbours' house carrying a bucket and then later running, although not that fast, and carrying what appears to be a chain. At some point, the plaintiff is limping, which appears to be related to an attack upon him by his neighbour.

11. The footage also includes extensive footage of attendance by police officers at his premises on 8 May 2021 in which, during conversations with the police, he appears to be moving his neck freely.

12. There is also CCTV footage of an altercation between the plaintiff and his neighbour apparently from 23 May 2021. Ms Harrington asserts that during the footage the plaintiff appears to be "moving normally with no walking stick, moving his head freely". That is certainly my impression from viewing that footage.

13. There is also body-cam footage taken on 25 June 2021 recording a conversation between the plaintiff and a police officer about a complaint made by the plaintiff's partner. The conversation takes place with the police officer on the footpath and the plaintiff in his kitchen. During that conversation he appears to move his neck freely.

14. Uniform Civil Procedure Rule 31.10 is in the following terms:

31.10 Plans, photographs, audio-visual recordings and models

(1)   At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.

(2)   A party who fails to comply with subrule (1) may not tender the plan, photograph, audio-visual recording or model in evidence except—

(a)   in the case of a prescribed item—where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or

(b)   in any other case—by leave of the court.

(3)   This rule does not apply to any proceedings entered, or intended to be entered, in—

(a)    the Commercial List or the Technology and Construction List in the Supreme Court, or

(b)   the Commercial List or the Construction List in the District Court.

(4)   In this rule—

audio-visual recording includes a sound recording or a record of moving images (or both) whether stored on film, audio or video tape, digitally, electronically or by any other means.

prescribed item means a photograph or audio-visual recording that was made or obtained in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing.

15. It can be seen that the structure of the provision is that UCPR 31.10(1) imposes an obligation on a party who has an intention to tender any audio-visual recording to provide it to the other party seven days before the commencement of the hearing. Uniform Civil Procedure Rule 31.10(2) then operates in circumstances where a party has failed to comply with r 31.10(1) so as to prevent the tender of the item except either with the leave of the Court or, in a particular case concerning a so-called "prescribed item", where the Court is satisfied the party had a legitimate forensic purpose for not providing the other parties an opportunity to inspect the item.

16. "Prescribed item" is defined in r 31.10(4) as meaning or including an audio-visual recording that was made or obtained in connection with the relevant proceedings by or at the request of the party for the purpose of testing the credibility of a witness at the hearing. Exhibit RTH2 appears to be a prescribed item in that it is an audio-visual recording that was "obtained" in connection with the current proceedings by, or at the request of, the State and for the purposes of testing the credibility of a witness, specifically the plaintiff.

17. Uniform Civil Procedure Rule 31.10 is a curious provision because it leaves a party in a position such as that of the State in these proceedings of having to effectively deliberately not comply with r 31.10(1), but then run the gauntlet that they might nevertheless be able to tender the relevant material by way of exception under r 31.10(2)(a).

18. The common law origin of the equivalent to this provision was traced by Davies J in Latimer v Day [2015] NSWSC 11 (“Latimer”). In that case, the circumstances of which are not too different from this one, his Honour made orders, the effect of which is to excuse compliance with sub-rule (1). His Honour did so on the basis that his Honour affirmatively concluded that the item in question fell within UCPR 31.10(2)(a) that is, it was a prescribed item and the Court was satisfied the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect it.

19. In that case and in this case and the other cases that were discussed in Latimer, the legitimate forensic purpose was identified as avoiding a plaintiff, who is said to be claiming to be disabled, from tailoring their evidence to meet what the footage shows.

20. Read literally, UCPR 31.10(2)(a) is different to the relevant common law test which is not so much concerned with whether there was a legitimate forensic purpose but instead whether a litigant was being deprived of a legitimate forensic advantage (see Halpin & Others v Lumley General Insurance [2009] NSWCA 372, [2009] 78 NSWLR 265 at [119]). For the purposes of this application, the difference does not matter. Otherwise, I would only observe that the only judicial officer who should be addressing the operation of UCPR 31.10.2(a) in any determinative sense, is the trial judge because it will be the trial judge who will make decisions about the tender of the relevant item.

21. All that, however, can be put aside because, at the very least, given the matters that have been demonstrated by the State, I am satisfied that if they were required to disclose the footage to the plaintiff in advance of the hearing, then they would be deprived of a legitimate forensic opportunity. They should at least be excused from the operation of the rule. As I have said, ultimately whether the material, if shown at the hearing to the plaintiff or otherwise, can be tendered will be a matter for the judge hearing the proceedings.

22. In terms of other orders, the making of this ex-parte application would likely be rendered futile if the fact that the application is being made now, or these reasons were made available to the plaintiff, as any competently represented plaintiff would become aware from even the most general description of the nature of this application what is going on and that would, to a substantial extent, operate to deprive the defendant of a legitimate forensic advantage that I have identified.

23. On the other hand, there is clearly something troubling about the Court hearing an application ex-parte concerning material affecting the plaintiff's credit without them having notice. That concern is particularly acute with the judge hearing the application is the same as the trial judge, which is not this case.

24. In Latimer, Davies J made a series of orders, the effect of which was to suppress publication of any material concerning the application until such time as the material was shown to the witness or tendered in open Court. I will make similar orders, although they will be drafted by reference to the Court Suppression and Non-Publication Orders Act2010, so that they include a definite end date.

25. Further, in Latimer, Davies J made an order that the material relied on to support the application as well as the orders and the reasons be kept in a sealed envelope which could not be opened without 24 hours' notice in writing to the defendant and only upon a order of the Court. As I indicated in argument, I am generally not in favour of orders that somehow bind a judge in that fashion.

26. Instead, the orders that I will make will be for the storage of the material in a sealed envelope which can only be opened with the leave of a Judge of the Court.

27. Accordingly the Court orders that:

1. The defendant is excused from compliance with UCPR 31.10(1) in respect of the audio visual recordings in “Exhibit RTH2 – 191381” to the Affidavit of Rachelle Harrington sworn 29 July 2021.

2. Pursuant to section 7 of the Court Suppression and Non Publication Orders Act 2010, and on the grounds appearing in section 8(1)(e) thereof, until 1 September 2021 or such earlier time as the defendant raises in open Court the contents of Exhibit RTH2 – 191381 to the affidavit of Rachelle Harrington sworn 29 July 2021, the publication of the Orders made on this application, the application itself, the affidavit of Rachelle Harrington sworn 29 July 2021 and any transcript of the hearing of the application are suppressed.

3. Order 2 shall operate throughout the Commonwealth.

4. The terms of these orders, the Court’s reasons, the transcript of this application and the material relied on, shall be placed in an envelope marked “Confidential: Order pursuant to UCPR r 31.10 – not to be opened without the leave of a judge of the Court”.

5. Orders 1 to 3 are not to be published on Justice Link until Order 2 expires.

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Decision last updated: 04 September 2023