Beckett v The State of New South Wales (No. 3)
[2013] NSWSC 791
•28 June 2013
Supreme Court
New South Wales
Medium Neutral Citation: Beckett v The State of New South Wales (No. 3) [2013] NSWSC 791 Hearing dates: 1 March 2013 Decision date: 28 June 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. The Defendant is to provide further discovery of, and to produce for inspection, the original complaints in relation to the files discovered for the purposes of categories 3 and 47 in the categories for discovery ordered by Harrison J on 27 June 2011.
2. Otherwise, dismiss the Plaintiff's Notice of Motion filed 31 October 2012.
3. No order as to costs of the Motion to the intent that the parties bear their own costs.
Catchwords: PROCEDURE - discovery and interrogatories - discovery - privilege - statutory privilege under s 170 Police Act 1990 - whether documents should be produced though not admissible in evidence - definitions of privileged document and privileged information in UCPR - whether original complaints should be produced - who is a witness for the purposes of s 170 Legislation Cited: Evidence Act 1995
Police Act 1990
Police Regulation (Allegations of Misconduct) Act 1978
Uniform Civil Procedure RulesCases Cited: Beckett v State of New South Wales [2011] NSWSC 626
Beckett v The State of New South Wales (No. 1) [2011] NSWSC 818; (2011) 210 A Crim R 105
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Commissioner of Police v Hughes [2009] NSWCA 306
Griffiths v State of New South Wales (Hall J, 14 September 2010, Unreported)
Jean Luc Clavel v John Savage (Rothman J, 16 November 2010, Unreported)
Priest v State of New South Wales [2006] NSWSC 1281
R v Saleam (1989) 16 NSWLR 14
Re Southland Coal Pty Ltd (Recs and Mgrs apptd) (in Liq) [2006] NSWSC 899; (2006) 203 FLR 1Category: Interlocutory applications Parties: Roseanne Beckett (Plaintiff)
The State of New South Wales (Defendant)Representation: Counsel:
P Blacket SC & N Broadbent (Plaintiff)
P Saidi & A N Williams (Defendant)
Solicitors:
Turner Freeman (Plaintiff)
Crown Solicitor's Office (Defendant)
File Number(s): 2008/289411
Judgment
This Notice of Motion concerns whether the Defendant is required to produce for inspection certain documents discovered by the Defendant pursuant to orders made by Harrison J on 27 June 2011: Beckett v State of New South Wales [2011] NSWSC 626. The dispute about whether the documents should be produced relates to claims for privilege by reason of s 170 Police Act 1990 and client legal privilege.
Background
Although parts of the background to the present claim were set out in my judgment on a separate question delivered 5 August 2011 (Beckett v The State of New South Wales (No. 1) [2011] NSWSC 818; (2011) 210 A Crim R 105) it is appropriate that the background be set out in this judgment because particular aspects of it are more relevant to the issue now before me than was the case in the earlier judgment.
On 24 August 1989 the Plaintiff was arrested and charged in relation to a number of matters concerning her husband Barry Catt. The arresting officer was Peter Thomas. The precise charges are set out in my earlier judgment at [5] and [6].
Following her conviction on some of the charges the Plaintiff was sentenced on 11 September 1991 to various terms of imprisonment which are pleaded at paragraph 18 of the Statement of Claim. The Statement of Claim recites the circumstances whereby the Plaintiff remained in custody until 6 August 2001 when she was released on bail following an appeal. On 27 July 2004 following an extensive inquiry by Acting District Court Judge Davidson the matter was remitted to the Court of Criminal Appeal which quashed convictions in respect of Counts 1, 2, 5, 6, 7 and 9, entered an acquittal on the latter count and ordered new trials in respect of Counts 1, 2, 5, 6 and 7. The appeal in relation to Counts 3 and 4 was dismissed.
It is the Plaintiff's case that Thomas was responsible for the instigation of the investigation of the Plaintiff. The Plaintiff also alleges that Thomas's assistant Paget was substantially and sufficiently involved in the procurement and maintenance of the charges and alleges that he acted in concert with Thomas. The particular conduct relied on which has been particularized is that Paget and Thomas acted in concert with the Plaintiff's former husband Barry Catt and Adrian Newell to procure the Plaintiff's conviction on charges that were false and/or were not objectively sufficient to warrant the laying of charges and that the informant lacked any or any honest subjective belief in the guilt of the Plaintiff.
Further it is alleged that Thomas was motivated by antipathy and malice towards the Plaintiff.
The Statement of Claim records Thomas's investigation of a fire at business premises leased by the Plaintiff on 26 December 1983 that resulted in the Plaintiff lodging a complaint to the New South Wales Police Force and the Ombudsman concerning Thomas's inappropriate and unethical conduct.
The Plaintiff's case in broad terms alleges that as a result of the Plaintiff's complaints about Thomas and by the complaints of other persons concerning Thomas's conduct as a police officer he was subject to departmental investigations prior to 1989. Those departmental investigations were conducted under the provisions of the Police Regulation (Allegations of Misconduct) Act 1978.
The Plaintiff's case against Thomas will allege that Thomas's conduct, which it claims was motivated by vindictiveness and because of his friendship with Barry Catt, caused him:
(a) to engage in a conspiracy with Catt to which Paget and Newell were partners and caused him to pursue the search warrant referred to in paragraphs 76 and 81 of the Statement of Claim;
(b) in the execution of the search warrant to have placed a revolver in the Plaintiff's premises improperly;
(c) to seize various items referred to in the particulars at paragraph 84 of the Statement of Claim.
Further it is alleged that Newell and Thomas connived to adulterate samples of orange juice, milk and chocolate milk taken from Barry Catt's refrigerator and submit them to the Government Analytical Laboratories for analysis. It is alleged that Thomas and/or Page also falsely claimed to have found containers labelled Rivotril and Lithium in a black handbag whilst searching the Plaintiffs premises on 24 August 1989.
The Plaintiff has particularized that the modus operandi of the police officers Thomas and Paget was to harass and intimidate witnesses with a view to having them co-operate with the police to secure a conviction of the Plaintiff and to cause them to make statements that were false.
As a result of complaints made by the Plaintiff and by other persons concerning Thomas's conduct, both Thomas and Paget were subjected to various departmental investigations.
A part of the Plaintiff's case involves evidence that was tendered before the Davidson Inquiry from a number of witnesses including a former work colleague of Thomas who worked as a private investigator with him in Queensland, one Peter Caesar, whose evidence if accepted is capable of confirming that Thomas had committed perjury and deliberately conspired to frame the Plaintiff. Similar evidence was also tendered in an affidavit from Patricia Debbie Royce sworn 2 May 2002.
Additionally before the Davidson Inquiry a letter of 8 May 1990 by Thomas to Detective Sergeant Matthews, a police officer attached to ICAC, was put into evidence. The letter made serious allegations about the Plaintiff and a person named Errol Taylor who had also made complaints concerning Thomas's conduct as a police officer.
Additionally, before the Davidson Inquiry evidence was tendered through a Crown Prosecutor that tended to demonstrate that Thomas had brought improper pressure to bear on a witness, Crista van der Merwe. Judge Davidson in his factual findings said that the tape recording recorded by Ms van der Merwe which was made available to the Crown supported the contention that Detective Sergeant Thomas had a propensity to apply pressure by way of promise as well as threat to potential witnesses in a way calculated to produce false evidence.
The relevant conduct by Thomas took place in early 1989 and resulted in the evidence of Thomas not being called by the Crown at the trial of Mr Bracomonte, Ms van der Merwe's boyfriend.
The discovered documents and the Motion
Harrison J ordered that documents in the categories contained in Annexure "A" to his judgment be discovered. Two categories (categories 3 and 47) were said to be relevant to the present claims for privilege by counsel who appeared before me on the present application. Those categories were described as follows:
3. Any and all documents in relation to complaints made by the Plaintiff in respect of:
(a) Peter Thomas;
(b) Carl Paget;
(c) James Henry Morris;
including but not limited to the complaints investigated by the Police Service, the Internal Affairs Unit and the NSW Ombudsman. Such documents to include but not be limited to;
(a) the complaints
(b) any and all correspondence, memoranda, notes, diary entries by any officer or person in relation to the complaints or the investigations into the complaints
(c) any and all responses by Peter Thomas
(d) witness statements
(e) recordings of any kind in relation to the to the complaints or the investigations into the complaints
(f) reports, notes, memoranda, minutes of meetings, decisions or other documents evidencing the manner in which the investigations into the complaints were undertaken
(g) reports, notes, memoranda, minutes of meetings, decisions or other documents evidencing the manner in which the complaints were resolved or finalized.
...
47. All Police Internal Affairs (including any and all reports made pursuant to s 94A of the Police Act) in respect of;
(a) Peter Thomas;
(b) Carl Paget;
(c) James Henry Morris.
In its List of Documents discovered in relation to category 3 the Defendant has listed documents numbered 55 to 73 in respect of which no claim for privilege is made. It has listed documents 710 to 943 as documents in respect of which privilege is claimed. That privilege in all cases is based on s 170 Police Act and/or s 59 Police Regulation (Allegations of Misconduct) Act. In two cases (documents 889 and 890) legal professional privilege is claimed also.
In respect of category 47 documents numbered 637 to 648 are discovered with no claim for privilege. Documents 983 to 2586 are said to be privileged under those statutory provisions with the additional claim of legal professional privilege for a relatively small number of documents within that group.
In her Notice of Motion filed 31 October 2012 the Plaintiff seeks the following orders:
1. An order that the defendant provide further and better discovery of document number 128 in its list of documents dated 15 September 2011 by providing all unredacted original duty book entries of Detective Sergeant Peter Thomas.
2. The defendant produce for inspection the all documents discovered in its list of documents dated 15 September 2011 consecutively numbered 703 to 2584 with the exception of documents numbered 703, 704, 705, 706, 707, 708, 709, 2574, 2575, 2576, 2577, 2583.
3. The defendant produce for inspection documents consecutively numbered S24 to S35 in its supplementary list of documents dated 21 November 2011.
The legislation
The Departmental investigations were conducted under the provisions of the Police Regulation (Allegations of Misconduct) Act. Section 59 of that Act relevantly provides:
1. Subject to this section, a document brought into existence for the purposes of this Act is not admissible in evidence in any proceedings other than proceedings (including an inquiry under section 45) with respect to the discipline of the police force before -
(a) the Commissioner; or
(b) the Tribunal.
2. Subsection (1) does not apply to or in respect of-
(a) a document incorporating a complaint;
(b) a document published by order of or under the authority of either House, or both Houses, of Parliament;
(c) a document published under section 32(3) or 45(5); or
(d) a document that a witness is willing to produce.
3. Subsection (1) and (2) do not operate to render inadmissible in evidence in any proceedings any documents that would not have been so admissible if this had not been enacted.
That Act was repealed and replaced by the Police Act. Clause 25 of Schedule 4 to this Act relevantly provides:
25 Application of provisions relating to complaints
(1) Part 8A does not apply to conduct that occurred before the commencement of the former complaints Act.
(2) Part 8A extends to conduct that occurred after the commencement of the former complaints Act and before the commencement of Part 8A.
(3) Anything duly done before the commencement of that Part under a provision of the former complaints Act is (subject to the regulations under this Schedule) taken to have been duly done under the corresponding provision of that Part.
The provision corresponding to s 59 of the earlier Act is s 170 of the Police Act. It provides:
170 Certain documents privileged
(1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings:
(a) that concern the conduct of police officers, and
(b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.
(2) Subsection (1) does not apply to or in respect of:
(a) a document comprising a complaint, or
(b) a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or
(c) a document that a witness is willing to produce.
(3) Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.
For practical purposes there is little difference between s 59 of the former Act and s 170 of the present Act for the present Motion. I have referred hereafter to s 170.The
What documents should be produced?
In relation to prayer 1 of the Notice of Motion that sought unredacted original duty book entries by Thomas, Senior Counsel for the Plaintiff said that he could not deal with the issue. He said it would be difficult even if I was to see the un-redacted material to know whether it was relevant without having full knowledge of the context. He said that it would be a matter for the trial Judge having heard the relevant evidence to determine if un-redacted copies of the entries should be provided.
I understood that submission to mean, therefore, that prayer 1 was not pursued.
The principal matter argued on the hearing of the Motion concerned the statutory privilege to which I have referred. Prayers 2 and 3 in the Motion were concerned with that matter. There was a subsidiary issue relating to client legal privilege concerning the documents enumerated in Prayer 2 of the Motion and some other documents. I shall refer to that issue later in the judgment.
The Plaintiff submitted that what s 170 did was to provide a privilege from the documents being "admissible in evidence" in the present proceedings whereas it did not provide a privilege from production and inspection by the Plaintiff. Reference was made to Priest v State of New South Wales [2006] NSWSC 1281 at [60]. The Defendant drew attention to the definitions in the Uniform Civil Procedure Rules of a privileged document and privileged information in the Dictionary to the Rules.
The definition of privileged document is "a document that contains privileged information". The definition of privileged information includes:
(h) information:
(i) the disclosure of the contents of which, or
(ii) the production of which, or
(iii) the admission or use of which,
in the proceedings would be contrary to any Act (other than the Evidence Act 1995 ) or any Commonwealth Act (other than the Evidence Act 1995 of the Commonwealth),
The Defendant drew attention to r 21.5 UCPR concerning the documents which were to made available arising from discovery. That rule expressly excepted privileged documents.
In response, the Plaintiff submitted that the terms of the UCPR could not have the effect of modifying s 170 of the Police Act.
A similar issue arose for consideration in Commissioner of Police v Hughes [2009] NSWCA 306. That was an appeal from rulings made in the District Court requiring production of documents under subpoena despite a claim for privilege provided by s 170.
In Hughes Young JA (with whom Ipp JA and Handley AJA agreed) said:
[43] Before examining the submissions, it is necessary now to define more precisely what is meant by statutory privilege as it applies to the present case.
[44] Section 170(1) of the Police Act is, as far as relevant, as follows:
A document brought into existence for the purpose of this Part is not admissible in evidence in any proceedings.
[45] The exceptions are irrelevant. "This Part" refers to Part 8A of the Act which is headed "Complaints about conduct of police officers" and comprises ss 121-172.
[46] UCPR Pt 1.9(3) permits a person who receives a subpoena to object to producing a document on the ground that the answer would disclose privileged information. Associated rules empower the parties to produce evidence on the question of privilege for the court to consider the documents and make a ruling.
[47] The Dictionary to the UCPR defines "privileged information" as including paragraph (h)(iii) "[information] ... the admission or use of which, in the proceedings would be contrary to any Act. ..."
[48] Thus, if s 170(1) of the Police Act makes a document inadmissible at the trial, it is the subject of statutory privilege which is an answer to its production on subpoena.
The Plaintiff submitted that these remarks were obiter and that Young JA did not consider the exceptions in sub-s (2). In relation to the exceptions, the Plaintiff's submissions are difficult to understand. This part of the judgment is not concerned with the exceptions. Rather, it is concerned with the inter-relationship between admissibility (by virtue of s 170) and production for other purposes. Ultimately, the issue in Hughes was whether documents were required to be produced in answer to a subpoena. Section 170 provides, on its face, a privilege only against admissibility. It was necessary, therefore, for the Court to determine if the documents had to be produced in the first place.
Even if the remarks were obiter I consider that I should follow a unanimous decision of the Court of Appeal. I note that Hall J considered that he was bound by that decision in a similar case involving a subpoena: Griffiths v State of New South Wales (Hall J, 14 September 2010, Unreported).
To the extent that Priest says otherwise, I must regard it as wrongly decided in the light of Hughes. Similarly, what was said in R v Saleam (1989) 16 NSWLR 14 at 18 no longer has application because of the definitions of privileged information and privileged document in the UCPR: Jean Luc Clavel v John Savage (Rothman J, 16 November 2010, Unreported) at [7]. Accordingly, to the extent that the documents are inadmissible by virtue of either or both of s 59 and s 170 the Defendant cannot be required to produce them whether through discovery or by Notice to Produce or subpoena.
The Plaintiff next submitted that the documents discovered did not include each of the complaints themselves. Attention was directed, for example, to volume 18 (document 912 ff) on page 76 of the documents. The first document was a copy of an Internal Affairs Branch coversheet for a particular numbered matter. Thereafter the documents were those that might be thought to fall within that file. What was apparent, however, was that the complaint which brought about the creation of the file was not recorded as a document.
In relation to the complaints themselves the Defendant submitted that if the complaints were not within the complaints file they fell outside the privilege in s 170 but if they were within the complaints files they were subject to that privilege. The distinction was said to arise because of the principle established in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
The principle established by Propend Finance was that even where the original of a document may not have been privileged a copy might be the subject of privilege because that copy was produced for the purpose of being provided to a lawyer for legal advice. This principle has been held to extend to the privilege referred to in s 170: Hughes at [96] to [103].
However, what the Defendant appeared to be submitting in the present case was that, by some analogy that is not clear, a complaint (which is not otherwise the subject of privilege under s 170) acquires that privilege by being placed on a file which itself was brought into existence for the purposes of Part 8A of the Police Act 1990. What seems to have been suggested at one point during oral submissions by the Defendant was that once part of the file the complaint ceased to have a separate existence. If that was the submission it is undermined by the fact the Defendant in its List of Documents has treated each document in the files as a separate document.
In my opinion the only relevance of Propend Finance is that if a copy of the complaint is made and put on the file that copy will be privileged: Hughes at [96] and [102]. However, that says nothing about the original complaint: Hughes at [98]. The mere placing of the complaint or a copy of the complaint into a file that was brought into existence for the purposes of Pt 8A of the Police Act does not alter the fact that the original complaint, wherever it is found, does not have the privilege by the express words of sub-s (2)(a).
It would not appear that documents numbered 55 to 73 comprise all of the original complaints that gave rise to the creation of the various files that commence at document 912. The original complaints must be discovered and produced.
The Plaintiff then submitted that documents such as transcripts of hearings and judgments of the District Court Judge presiding over the hearing of the complaints were public documents and could not be caught by s 170.
Although it would seem anomalous that such documents are privileged by virtue of s 170, on the face of it such documents would have been brought into existence for the purpose of Part 8A. The express exception in sub-s (2)(b) for a document published by Parliament suggests that it was intended that court documents that fall within sub-s (1) are to be privileged from production: expressio unius est exclusio alterius. As far as judgments are concerned s 91 Evidence Act 1995 may mean that material in them is inadmissible in any event.
The Defendant appeared to accept that the statutory privilege in respect of these documents could be overcome by issuing subpoenas to relevant courts and/or the Court Reporting Branch.
The Plaintiff also relied on s 170(2)(c) concerning documents that a witness is willing to produce. The Plaintiff submitted that the word "witness" could not be construed as being a reference to the Commissioner of Police simply because he had the custody and possession of the files. Rather the "witness" would be a reference to the person who made the statement that constituted the document brought into existence for the purposes of Part 8A of the Act. The Defendant submitted that the Commissioner was the witness.
In Jean Luc Clavel a similar situation arose as in the present case although that case concerned production by reason of a subpoena. Rothman J said:
[13] The purpose of s 170 of the Act is plainly to protect from use in a court (other than specified tribunals and for specified and related purposes) those documents that are brought into existence for the purpose of a complaint against a Police Officer. While ever such a document retains that status (i.e. it may have or acquire another purpose) it may not be admitted into evidence. The Commissioner, unless she or he is a witness, does not even have the capacity to waive that protection.
Whilst I accept that the last sentence concerning the Commissioner was made in passing it provides support for the view that the witness referred to in s 170(2)(c) is the person who made the statement or document in respect of which privilege is claimed and not the Commissioner simply because he is the Defendant or the recipient of a subpoena. In the present case he is neither. The only relevance of the Commissioner of Police in the present matter arises from the suggestion that he (on behalf of the State of New South Wales) has possession and custody of the complaint files.
In my opinion, and adopting a purposive approach to the legislation, a reference to a witness in s 170 must be a reference to the person who made the statement or created the document in respect of which privilege is claimed. The section is likely to have been intended to provide some protection for people making complaints or giving evidence in support of complainants. That purpose would not be advanced if it was the Commissioner who could decide to give consent to the use of some other person's document. Nor could the Commissioner (as Rothman J noted in Clavel at [13]) waive the privilege.
It would be for the person asserting the exception to the privilege established by s 170(1) to demonstrate that any relevant witness is willing to produce an otherwise privileged document. I do not consider that anything said in Re Southland Coal Pty Ltd (Recs and Mgrs apptd) (in Liq) [2006] NSWSC 899; (2006) 203 FLR 1 at [14] is inconsistent with this. Austin J said there:
(c) Onus - The party claiming privilege bears the onus of establishing the basis of the claim and the party seeking production does not bear the onus of excluding privilege (Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at 337; ASIC v Rich [2004] NSWSC 1089 at [2]; In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 543 at [24]). The party claiming privilege must establish the facts from which the court can determine that the privilege is capable of being asserted (National Crime Authority v S (1991) 100 ALR 151 at 159). The facts are to be proved on the balance of probabilities (Evidence Act, s 142).
In the present case the Defendant has demonstrated that it has the privilege by virtue of s 170(1). Sub-s (2) provides exceptions to that privilege. In my opinion the onus is on the party asserting an exception because, ordinarily in civil cases, a party is not required to disprove a negative.
In relation to the claim for client legal privilege the Plaintiff did not take issue with the claim for privilege for the documents enumerated in Prayer 2 of the Motion. However, a similar claim for privilege was made for a large number of other documents in the discovered list. Those documents are identified in an affidavit of Jeffrey Davis, an inspector of police who has worked in Professional Standards since July 2002. Mr Davis has, in respect of each document in respect of which a claim for client legal privilege has been made, set out the purpose of the preparation of the document. On the face of his affidavit all of the documents were prepared for the purpose of either obtaining or providing legal advice.
Mr Blackett of Senior Counsel for the Plaintiff accepted that he had not cross-examined Mr Davis concerning those documents, and he conceded that, at least at the present stage, he was not in a position to go behind the claim for privilege. Certainly, apart from what Mr Davis says in his affidavit, the description of a number of the documents where such privilege was claimed on the face of it strongly suggests that the claim is properly made.
Conclusion
The Plaintiff succeeds only in demonstrating that the original complaints associated with the files discovered in relation to categories 3 and 47 should be discovered and produced. The Plaintiff has only been partly successful. In my opinion, there should be no order for costs on the Motion.
I make the following orders:
1. The Defendant is to provide further discovery of, and to produce for inspection, the original complaints in relation to the files discovered for the purposes of categories 3 and 47 in the categories for discovery ordered by Harrison J on 27 June 2011.
2. Otherwise, dismiss the Plaintiff's Notice of Motion filed 31 October 2012.
3. No order as to costs of the Motion to the intent that the parties bear their own costs.
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Decision last updated: 28 June 2013
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