Australia Federal Police & the Queen v Bush, I.L

IN THE FEDERAL COURT OF AUSTRALIA

)

AUSTRALIAN CAPITAL TERRITORY

)

)	No. ACT G 70 of 1987

DISTRICT RM;ISTRY

)

GENERAL DIVISION

)

IN THE MATTER of an application by

RONALD ALWYN G R M ,

the Commissioner

of the Australian Federal Police, made pursuant to sub-S. 24( 1A) of the Federal Court of Australia Act 1976

AND IN THE MATTER of proceedings pending

in the Supreme Court of the Australian

Capital Territory between The Queen and

Ian Leslie Bush

Neaves J.

29 October 1987

REASONS FOR JUM;MENT

On 13 October 1987 I dismissed an application made Ronald Alwyn Grey, the Commissioner of

the Australian Federal

Police, pursuant to sub-s.24(1A) of the

Federal Court of

Australia Act

1976 (Cth) ("the Act") for leave to appeal from

what was described in

the application as

"the judgment of the

Supreme Court

of the Australian Capital Territory given on 13

October 1987 at Canberra".

In dismissing the

application I

said that I would give reasons for my decision. What follows

are those reasons.

The application arose in the following circumstances.

On 12 October 1987 Ian Leslie Bush was arraigned

in the Supreme

2 .

Court of the Australian Capltal Territory before his Honour the

Chief Justice, Mr Justice Miles, on a charge that on 25 January

1987 in

the Australian Capltal Territory he did murder Debra

Michelle Bush.

He pleaded not

guilty to the charge and a jury

was empanelled.

In the absence

of the jury, counsel for the

accused made a

call upon a subpoena duces tecum directed to the

Commissioner, Australian

Federal

Police,

requirlng

the

production of the following documents -

"All records of any complaints

made

against

either of the following Police Officers:-

1. Chief Inspector Richard Thomas Ninness;

2. Detective

Senior

Sergeant

Donald

Max

Bailey;

in his capacity as a Police Officer, by any member of the public or of the Police Force at

including -

any note of telephone

conversation

recording initial complaint;

any written complaint;

any Police Officer's notebook or official diary, occurrence report or

witness' statement in so far

as it

relates to

the complaint or to the

investigation of the complaint;

any internal

Police

working

document

relating to the	investigation of the
complaint;

any records of the lnvestigations of the complaint including the transcript of any proceedings;

any report of the result of the

Investigation of the complaint;

any records,

transcripts

other

documents

relating

to disciplinary

proceedings by and

behalf

of the

Commissioner of

the ACT Police and the

Australian Federal Police."

3 .

The two

persons named in the subpoena

were to be witnesses

for the Crown at the trial

of the accused.

Certain

documents

were

produced in answer

par.(g) of the subpoena but, in relatlon to the documents falling within pars (a) to (f) inclusive, counsel appeared

for the Commissioner to object

to their production

on the

ground that their disclosure would be contrary

to the public

interest.

No challenge was made to the subpoena

itself.

Oral evidence was given by Inspector Patrick Joseph Leonard, an officer of the

Australian

Federal

Police

attached to the Internal Investigation Division,

Canberra.

He gave evidence

as to the

establishment of

the Internal

Investigation Division and its responsibilities

and of the

manner in which an investigation into a complaint against

member of the

police

force

is conducted. The

witness

identified 9 files in the Commissioner's possession which answered the description in the subpoena and indicated the

general nature of the material

on each of those files.

The

evidence disclosed that

two

the files (identified as

files numbered 7 and 8 ) related to investigations which were

then in progress and in relation to which the members of the

police force against whom the complaints had been made had

not

been

informed

of the complaints nor had

they

been

interviewed or required to furnish a report.

Inspector Leonard said that investigations by the Internal Investigation Division are conducted in confidence and he advanced as one reason for such confidentiality that it helped to remove any inhibitions which a member of the public might have in coming forward to make a complaint

against a member of the police force.

He also relied on

certain provisions

the Complaints (Australian Federal

Police) Act 1981 (Cth) ("the Complaints Act") as requiring confidentiality in the conduct of such investigations. He did not advance any basis, other than those mentioned, for the claim that the public interest required that the files relating to investigations which had been completed and in

relation

to which no

disciplinary

or other

action

was

contemplated should not be produced. It was said, however, that to make public the files relating to complaints

currently under	investigation could seriously hamper those
investigations.

More detailed reference to the provisions of the

Complaints Act which were relied upon in support of the

claim that the public interest required that the documents

not be produced should be

made.

Section 6 provides for

certain complaints made against a member

of the Australian

Federal Police to be referred to the Internal Investigation

Division

established

in pursuance of s.14. Section 7

requires

the

Division to investigate such complaints and

provides for its powers.

Sub-sections 7(5), ( 5 A ) , (5B), (6)

and

(8) provide:

" ( 5 ) A member

of the Investigation Division

may, for the purposes of the investigation of a complaint or matter, direct a member of the Australian Federal Police to furnish information, produce a document or other record, or answer a question, that is relevant to the complaint or matter, as the case may be.

(SA) A

direction under sub-section

(5) has

no effect	unless the	person	giving	the
direction -

states in the

direction that the member

concerned

being expressly directed

under sub-section (5) of this section;

specifies in the direction the substance

of the complaint or matter	being
investigated;

if it is practicable to do so - gives the direction in writing; and

if the direction is given in writing - causes a copy of the direction to be furnished to the member concerned.

(5B) In any

proceedings for a contravention

of sub-section ( E ) ,

the onus of proving that the

person who gave a direction under sub-section (5) complied with sub-section (5A) lies on that person.

( 6 ) Where a member of the Australian Federal Police is directed

under

sub-section

(5) to

furnish information, produce a document

or record

or answer a question, the member

is not excused

from complying	with the direction on the ground
that -

(a) the furnishing

of the information, the

production of the document or record or

the answering of the question -

(i) would be contrary to the

public

interest; or

(ii) might make

him

liable

penalty; or

(b)

the information, the production

the

document or record

or the answer to the

question might tend to incriminate him,

or on any other ground, but the information, the production of the document or record or the answer to the question is not admissible in evidence against him in any civil or criminal

6 .

proceedings other than proceedings for an offence against sub-section (8) or for or in relation to a breach of discipline.

....

(8) A member of the

Australian

Federal

Police shall not -

(a) without

reasonable

excuse,

refuse

fail to furnish informatlon, produce a

document or other record

or answer a

question when so required in pursuance

of this section; or

(b) furnish information

or make a statement

to a member of the

Investigation

Division knowing that

is false

misleading in a material particular.

Penalty: $1,000 or imprisonment for 6 months. "

Section 87, so far as material, provides:

"(l) Each of the following persons

is a

person to whom this section applies:

a	member	of the	Australian	Federal
Police;

a person

who

conducting

investigation

on behalf of the

Investigation Division in pursuance	of
an authority given under section 8; a person who is conducting an

investigation in accordance

with

arrangements made	by the Commissioner
under section 46;

a person who is conducting an inquiry in

accordance with arrangements made by the

Minister under section 50;

a member of the staff referred to in

section 16 of the Australian	Federal
Police Act 1979.

( 2 )

Subject to this section, a person

who

is, or has been, a person to whom this section applies, shall not, either directly or indirectly, and either while he is, or after he

has ceased

to be, a person to whom this section

7 .

applies, except in the performance of his duties or with the consent, in writing, of the appropriate person, make a record of, or divulge

or	communicate, prescribed information acquired

at any time by him by reason of his being or having been a person to whom this section applies.

Penalty: $1,000.

( 3 ) Sub-section ( 2 ) does not -

prevent a person who is, or has been, a person to whom this section applies from disclosing, in a report under this Act, such matters as, in his opinion, ought to be disclosed in the course of setting

out the

grounds

for

the

conclusions

contained in the report; or

prevent a person from producing a record referred to in sub-section ( 2 ) or giving information so referred to in evidence

before a court,

the

Disciplinary

Tribunal or a person who

is authorized

hear

and

determine

proceedings

instituted against a member	in respect
of a breach of discipline.

( 3 A )

Sub-section ( 2 )

does not prevent

the

Commissioner

from

disclosing

information,

making a statement,

any

person

or to the

public or a section of the public with respect to the performance of the functions of, or an Investigation or inquiry by, the Investigation

Division if, in

the opinion of the Commissioner,

it is In the interests of the Australian Federal Police or of any person, or is otherwise in the public interest, to do so, having regard to whether the disclosure of that information, or the making of that statement would, or could reasonably be expected to -

(a) prejudice the fair trial

of a person or

the	impartial	adjudication of a
particular matter;

(b)

reveal, or enable a person to ascertain,

the

existence

or identity of a

confidential

source of information or

the identity of a complainant;

(c) constitute

unwarranted

invasion

the privacy of any person; or

(d) endanger

the

physical

safety

of any

person.

8 .

....

( 7 ) In

subsection ( 2 ) ,

'prescribed

information' means information supplied to or obtained by the Australian Federal Police in the course of, or for the purposes of, the

investigation of

a complaint, or

the holding of

an inquiry, concerning action taken

by a member."

After

hearing

submissions

by counsel

for

the

Commissioner and for the accused, his Honour the Chief Justice considered that he should inspect the documents and for that purpose adjourned the further hearing of the

matter.

Having inspected the documents, his Honour "gave

ruling" on

the question of their inspection by counsel for

the Crown and

for

the accused.

The ruling was

in the

following terms:

"My ruling is that counsel for the prosecution and for the accused may inspect those documents

in files number 1 to

6 and file number 9 which I

have

categorised

as constituting

evidentiary

material; that is to say, all written complaints, all statements of complainants and any witnesses,

all records

of any

conversations

with

complainants

and

witnesses

relating

to such

complaints

and all statements

and

records

conversations

and

reports

relating

such

complaints made by the	officer	under
investigation."

His Honour ordered that

his ruling should not take effect

before 2.15 p.m.

on 14 October 1987.

the

course

of ruling that

the

specified

documents might be inspected by counsel, his

Honour

expressed himself as being in agreement with the conclusion

reached by Gallop J. in

Ninness

Graham

(1986) 70

A.C.T.R.l

that the Complaints Act did not prohibit the

disclosure to a court, and,

in particular, to

the Supreme

Court of

the Australian Capital Territory in the course of

criminal proceedings, of

information acqulred in the course

of an Investigation conducted under that Act. His Honour accepted, agaln agreeing with Gallop J. In the case cited,

that the system of investigation envisaged by the Complaints

Act

was characterised

by Confidentiality and secrecy and

that disclosure in proceedings not of a disciplinary nature

of what a member of the police force had said in response to

a direction under s.7 of the Complaints Act might well be

inimical

to the

proper functioning

of a well disciplined

pollce force. His Honour also accepted that there was a public interest in the confidentiality of material gathered in the course of an investigation under the Complaints Act.

The

Chief Justice then referred

to the

reasons

advanced

counsel for the accused in support

the

proposition that inspection

of the documents was necessary

for the proper conduct of the accused's defence

and

expressed himself

as being satisfied that an arguable case

for inspection had been made

out.

His Honour

said that,

although he found some

difficulty in seeing

how the material

on the

files could

be used

by the accused effectively to

attack the credit

of Chief

Inspector Ninness

that of

Detective Senior Sergeant Bailey,

he could not be certain

that what he referred

to as the evidentiary material on the

files in question could not be used to that effect.

He,

therefore, concluded that the

accused

had

legitimate

10.

forensic interest in

the

inspection

of the evidentiary

documents

that related to investigations that had already

been concluded and	in respect of which no further	action was
in contemplation.

Having weighed

the

conflicting public interests

involved, his Honour gave the ruling

the text of which I

have set out earlier in these reasons.

It was from that

ruling that the Commissioner sought leave to appeal.

At the threshold was the question whether an appeal

lay from the "ruling" given by the Chief Justice.

An appeal

would lie

only if the ruling answered the description of a

judgment of the Supreme

Court of

the Australian Capital

Territory

within

the

meaning

of that expression in

par.Z4(l)(b) of the

Act, "judgment" being defined in 5 . 4 to

mean, in

the absence of a contrary intention,

"a judgment,

decree or order, whether

final or interlocutory, or a

sentence".

It may be that, had a case for the grant

leave to appeal been made out, the appropriate course would

have been

to have granted

leave, reserving the question

whether the ruling was a judgment, order or decree from

which an appeal

lay

for the consideration of the Full Court

hearing the appeal. However,

being of opinion that no

sufficient

ground had been shown for

the exercise

of the

Court's

discretion to grant leave

to appeal, assuming an

appeal

lay, it

was unnecessary

to further consider these

questions.

11.

The grounds advanced on behalf of the Commissioner in support of the grant of leave to appeal may be summarised as follows:

(a)	His Honour had misapplied the princlples stated by Gibbs C.J. in Alister v. The

(1984) 154 C.L.R.

404 at p.414 in

failing to

hold

that

the accused was

engaged in a mere "fishing"

expedition.

(b)

Insufficient weight had been given

the need to preserve the confidentiality

of statements made by a member

of the

police force pursuant to a direction given under s.7 of the Complaints Act.

(c)

Insufficient weight had been given to the prejudlce which could result to investigations by the Internal Investigation Division unless the person

making the complaint

those

and

interviewed in the

course

of such

investigations

could be

assured

that

what they said would remain confidential

except where disciplinary proceedings

proceedings for a

breach of sub-s.7(8)

of the Complaints Act were taken.

As to the first

those grounds, his Honour the

Chief Justice clearly proceeded, as he was required to do - see Aliater v. The Oueen (supra) per Gibbs C.J. at p.412 -

"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". His

Honour satisfied himself

that,

in the circumstances,

both

aspects

of the public

interest did require consideration,

although the conclusion that the accused had a legitimate

forensic interest

in the documents of which inspection was

12.

allowed was arrived at

only with considerable

hesitation.

But, his Honour having

reached that conclusion after himself

inspectlng the documents, it seemed to me most unlikely that

the Commissioner could convince an appellate court to reach

a conclusion that the case did not go beyond a mere "fishing

expedition" by the accused.

I was not satisfied that his

Honour could be	shown	to	have	misapplied	the	relevant
principles.

The other grounds relied on concerned the weight to

be given to each

of the public interests involved.

The

submissions put on behalf of the Commissioner did not go further than to contend that different minds might give greater weight to those interests than was given to them by

the Chief Justice.

The submissions did not, however, to my

mind,

establish that there was an arguable case

that the

discretion vested in his Honour had miscarried.

In addition to

the above matters,

I took

into

account

the

general

nature

of the

documents

for

which

protection was claimed and the harm which might result from their disclosure, the circumstance that the claim was a

"class" claim rather than a "contents" claim, the absence

material

to assist the

Court

in appreciating the adverse

effect disclosure of the documents, or documents of the class of those in question, would be likely to have upon the

administration

the Australian Federal Police

and, in

particular, upon

the mechanism

for the investigation

complaints against its members, and

the inconvenience that

13.

would result

if, having granted leave to appeal, the trial

then in progress

had

to be

interrupted

pending

the

determination of the appeal.

Taking all those matters

into account, I determined

that the application for leave to appeal should be dismissed

and I ordered accordingly.

certify

that this and

the preceding 12 pages are

a true copy of the Reasons

for Judgment herein of the

Honourable	Mr Justice
Neaves .

Associate

Dated:

29 October 1987

Counsel for

the

applicant

: Mr C. Erskine

Solicitors for the applicant

Australian Government Solicitor

Counsel for the accused	: Mr J.H. Brewster
Solicitor for the accused	: Legal Aid Office (A.C.T.)
Counsel for the Director

of Public

Prosecutions

: Mr I. Bermingham

Date of hearing

: 13

October

1987

[1987] FCA 581

29 Oct 1987