Capone v South Australian Police Information Unit - [2011] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)
CAPONE v SOUTH AUSTRALIAN POLICE INFORMATION UNIT
[2011] SADC 7
Judgment of His Honour Judge Tilmouth
3 February 2011
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Appeal to District Court from a determination of the Police Complaints Authority to withhold documents as exempt documents under clauses 6(1), 6(2), 9 & 13 of Schedule 1 to the Freedom of Information Act 1991 (SA), particularly records expressing opinions, advice, recommendations, consultations and deliberations between police prosecutors relating to a decision to withdraw a charge.
Held: Appeal dismissed
1. The determination to withhold documents disclosing information concerning personal affairs under clause 6(1) and as containing allegations or suggestions of criminal or other improper conduct under clause 6(2), were correctly taken.
2. The communications between police officers as to the decision to withdraw the charge were protected by clause 9 as internal working documents, the disclosure of which would be contrary to the public interest.
3. Those communications were additionally protected as exempt documents under clause 13 on the basis that they contained material disclosed to police prosecutions in confidence, the disclosure of which might reasonably be expected to prejudice the future supply of such information, and was not on balance therefore, in the public interest to release.
Freedom of Information Act 1991 (SA) Sections 2, 3, 4, 12, 20, 29, 39, 40, 41, 48; District Court Act 1991 Subdivision 1 of Division 2, s 42E, s 42F; Magistrates Court Rules 1992 Rule 26; Director of Public Prosecutions Act 1991 (SA) s 7; Victims of Crimes Act 2001 (SA) s 8; Osland v Department of Justice (2010) 84 ALJR 528; Victorian Public Service Board v Wright (1986) 160 CLR 145; Crewdson v Central Sydney Area Health Service [2002] NSWCA 345; Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; Rann v SA Water (No 2) (1996) 187 LSJS 438; Everingham v Director-General of Education (Unreported 13 November 1992); McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; Re Howard v Treasurer of the Commonwealth of Australia (1985) 7 ALD 626; R v B(F) [2010] 2 Cr APP R 35; DPP v Smith [1991] 1 VR 63; R v Prosser (1848) 11 Beav 306; 50 ER 834; R v Williams [1936] QWN 3; Maxwell v The Queen (1996) 184 CLR 501; R v Kent; ex parte McIntosh (1970) 17 FLR 65; R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48; Sinclair v Mining Warden of Maryborough (1975) 132 CLR 473; Police v Childs (2000) 76 SASR 425; DPP v Smith [1991] 1 VR 63; Osland v Secretary, Department of Justice (2008) 234 CLR 275; Accident Compensation Commission v Croom [1991] 2 VR 322; Nemer v Holloway (2003) 87 SASR 147; Supreme Court Rules 1992 Rules 7.01-7.15; District Court (Criminal and Miscellaneous) Rules 1992 Rules 6.01-7.15; Justices of County Tyrone [1912] 2 IR 44; Bailey v Bailey [1930] SASR 57; Broome v Chenoweth (1946) 73 CLR 583; District Court Civil Rules 2006 6 DCR 286(2); Conway v Rimmer [1968] AC 910; Grey v The Queen (2001) 75 ALJR 1708, referred to.
Veterinary Surgeons Board of South Australia v Mooney [2009] SADC 62; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Priebe v SA Police [2007] SADC 119; SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190, applied.
R v Ricci (1997) 70 SASR 78; R v Ellul (1990) 158 LSJS 10; McGuirk v University of New South Wales (2009) 75 NSWLR 224, distinguished.
Ward v Family Care Meeting Convenor & Ors [2003] SADC 18; Moore v The Registrar of the Medical Board of South Australia (2001) 215 SLJS 133; [2001] SADC 106; Konieczka v South Australian Police [2006] SADC 134, discussed.

CAPONE v SOUTH AUSTRALIAN POLICE INFORMATION UNIT
[2011] SADC 7
Introduction

This is an appeal against the refusal of the South Australian Police[1] to disclose documents under the freedom of information process, relating to the withdrawal of a charge of assault, allegedly committed against the applicant. Anna Capone claims to have been assaulted on 21 October 2006 by her sister’s former husband. He was granted leave to intervene in the appeal, by a Master of this court on 22 June 2010.
[1] Hereafter SAPOL
The freedom of information process
The charge of assault was listed for trial on 10 December 2008 in the Adelaide Magistrates Court. However on 1 December 2008 she was telephoned by a Sergeant Hawkins of the Adelaide Criminal Justice Section of the South Australian Police (Police Prosecutions), to be advised that the charge would be withdrawn, as it was on that day. She was told the reason for this was that there was “not enough evidence”. It was suggested that if she wanted to pursue the matter further, she could do so “civilly”.
Under s 8(1) of the Victims of Crime Act 2001 she was entitled to be informed the charge was being withdrawn as well as “the reasons for the decision”: s 8(1)(e). Feeling aggrieved by the withdrawal, and feeling dissatisfied with the scant reasons proffered, she pursued an application under the Freedom of Information Act 1991 (SA),[2] seeking full details of the reasons leading to discontinuance of the charge.
[2] Hereafter the "FOI Act"
Section 3(1) sets the objectives of the FOI Act as being:
(a) to promote openness in Government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the state, and
(b) to facilitate non effective participation by members of the public in the processes involved in the making and administration of laws and policies.
The means by which those objectives are to be achieved are found in s 3(2). They include ensuring the availability of information and the conferral of rights of access to documents. Rights of access are subject under s 3(2)(b) to:
restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy.
Hence the FOI Act erects a general legally enforceable statutory right of access to the documents of agencies to which it applies (s 12). It is however a right that does not extend to “exempt” documents (s 4): Osland v Secretary to the Department of Justice.[3] The relevant agency may refuse access in the case of exempt documents: s 20(1)(a), yet it is not obliged to. It is appropriate therefore to approach the FOI Act by giving it a construction “which would further, rather than hinder, free access to information”: Victorian Public Service Board v Wright.[4]
[3] [2010] 84 ALJR 528 at [7]
[4] (1986) 160 CLR 145 at 153-154
Factual background
On 16 June 2009, Ms Capone sought a “copy of all file information”, this being a reference to the file maintained by police prosecutions with respect to the assault charge. As a consequence, parts of that file were released to her under cover of a letter from the Freedom of Information Unit of the South Australia Police, dated 13 August 2009.[5]
[5] Exhibit “TMG3” to the affidavit of Tracey McCloud Gentgall
Other parts were withheld on the multiple footings that the information contained personal affairs of others, that “disclosure may be prejudicial to SAPOL’s daily activities”, and that they related to SAPOL’s obligation “for preventing, detecting, investigating or dealing with contraventions of the law and to ensure the public of confidentiality when supplying information”. Other grounds of refusal were that the documents contained allegations of criminal or other improper conduct “which had not been established by judicial process”, the material “contained opinions, advice and recommendations associated with law enforcement and/or prosecution activities” and was thereby not in the public interest to release, and because some were not created by police prosecutions. These multiple bases for such refusal have their origin in Schedule 1 to the FOI Act as “exempt” documents within the meaning of s 20(1)(a).
Being dissatisfied with this decision, Ms Capone sought an internal review under s 29 of the FOI Act which the police completed as recorded in a letter to her of 25 September 2009 under the hand of an accredited FOI Officer for Internal Review.[6] The decision reached following that review was expressed in this way:
I have confirmed the original determination and in doing, advise that all documents that can be released under the Act have been released.
[6] Exhibit “TMG4” to the Affidavit of Tracey McLeod Gentgall
Ms Capone then pursued a complaint to the Police Complaints Authority. The Authority dealt with it by letter of 10 November 2009.[7] The Police Complaints Authority is the “relevant review authority for the purpose of exercising the power of external review”, designated as such by s 39 of the FOI Act. Basically the previous determinations were upheld, except that items marked 41 and 42 were released. These comprised accounts and medical reports supplied in the first instance by Ms Capone herself.
[7] Exhibit “TMG5” to the Affidavit of Tracey McLeod Gentgall
The appeal
By Notice of Appeal dated 10 December 2009, Ms Capone appeals to this court against the decision of the Police Complaints Authority. She seeks an order for disclosure of “the material numbered 1-39 contained in the prosecution file relating to the assault charges against [The Intervener]”. In a further amended notice of appeal filed on 31 May 2010, these were reduced to documents 1-4, 6-12, 14-30 and 37-40 inclusive. The grounds of her appeal were that the reasons for refusal were unreasonable in each instance, and because the specified grounds for refusing disclosure did not apply.
In the meantime, a further discretionary determination was made on 9 June 2010 under s 19(2a) of the FOI Act, by which 15 further documents were made available, with some deletions. On 10 September further documents were released under the same section. It is accordingly unclear whether it is the decision 10 November 2009 or the latest decisions that are under appeal, but there is no practical consequence as the later decisions were more favourable to the appellant. The better view is that this must be an appeal from the determination of the Police Complaints Authority of 10 November 2009, as initiating appeal notices were filed before the two reconsiderations under s 39, and because the appellant was hardly aggrieved by either and because the Authority is a designated agency under s 39.
Section 40(2) of the FOI Act furnishes Ms Capone a right of appeal to the District Court from a “determination of an Agency”. An “agency” in relevant respects also includes the South Australian Police: s 4(1)(d). The FOI Act is virtually silent on the nature of the appeal and as to disposition thereof. There are certain evidentiary or procedural provisions in aid of an appeal, such as the capacity to consider restricted documents in the absence of the public: s 41(1), the capacity to require the production of documents for inspection: s 41(2), and a prohibition from determining an appeal unless the Minister responsible for administering the FOI Act is given a reasonable opportunity to appear and to be heard on the appeal: s 41(3).
Subject to these minor exceptions, the Administrative and Disciplinary Provisions of the District Court Act 1991 (SA) apply. In particular, the court is directed by s 42E(3) thereof to:
… give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
When it comes to disposition, the court is invested with the powers of affirmation, rescission or remission: s 42F.
As was pointed out in Registrar of the Veterinary Surgeons Board of SA v Mooney,[8] the threshold of intervention “cogent reasons”, demands something more than mere disagreement with the decision below, but there is no additional requirement to detect error, before intervention is justified.
[8] [2009] SADC 62 at [27]
Counsel on both sides argued the appeal on the premise that it was for the respondent to demonstrate the disputed documents in question were properly withheld.[9] This approach lies in s 48 of the FOI Act, which reads:
[9] The intervener took no position on this point
Part 6—Miscellaneous
……
48—Burden of proof
In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.
Counsel on both sides submitted this section governed the scope of the appeal, despite s 42E(3) of the District Court Act. They relied for this purpose on a decision of another Judge of this court in Konieczka v South Australian Police,[10] in which it was held s 42E(3) was inconsistent with s 48 of the FOI Act so that it:[11]
… must prevail because Section 42B(1) provides that Section 42E(3) is subject to the provisions of the special Act… and, therefore, I must allow Mr Konieczka to have access to the documents unless the police can justify their refusal. In my view, that conclusion is supported by Section 40(7) of the Freedom of Information Act.
Had the Parliament intended that cogent reasons had to be established in other circumstances, then one would have expected it to have said so.” In my respectful opinion it has so said, by drafting the FOI Act in such a way as to pick up the District Court Act so far as the nature and scope of appeals are concerned.
[10] [2006] SADC 134, Judge Boylan
[11] At [8]
With the greatest of respect, I have difficulty with this conclusion. In the first place s 48 is evidentiary; it has nothing to do with the scope of appellate review. It simply means the agency must establish its determination was justified upon the specific grounds of refusal relied upon in Crewdson v Central Sydney Area Health Service.[12] Still further, even if an appeal is properly seen as a proceeding “concerning a determination made under this Act”, that does not alter the fundamental position that s 48 remains evidentiary. As so construed, it is not a provision that operates so as to compromise or fetter the scope of the appellate jurisdiction conferred on the Court under s 42B(1) of the District Court Act.
[12] [2002] NSWCA 345 at [32]
The judge in Konieczka considered the decisions in Ward v Family Care Meeting Convenor & Ors[13] and Moore v The Registrar of the Medical Board of South Australia,[14] “hold that there is a tension or inconsistency between a provision of the District Court Act 1991 and a provision of the Freedom of Information Act”.[15] At issue in Moore, was the consequence of the removal from the FOI Act of s 42(1) in 2000. Previously the FOI Act provided that an appeal thereunder was by “way of rehearing”, at a time when s 48 was also in force. The judge held that because of the legislative change:[16]
… the appeal is no longer by way of rehearing and, rather than undertake a complete re-evaluation of the decision….there should be no departure from it save for cogent reasons” This is a little at odds with the decision maker bearing the burden of justifying the decision.
Later his Honour went on to deal with the specific question “whether there are ‘cogent reason’ to depart from the determination”.[17]
[13] [2003] SADC 18
[14] (2001) 215 LSJS 133; [2001] SADC 106
[15] Konieczka v South Australian Police above at [5]
[16] At [17]
[17] At [43]-[52]
In the second case of Ward, the same judge as in Moore, resolved what he saw as a “tension, if not inconsistency, between s 42E(3) of the District Court Act and s 48 of the FOI Act”, by ruling that “the provisions can live together…(T)he tension between them is more apparent than real.”[18] His Honour continued:[19]
An appellant, in order to succeed, bears an overall or general onus of establishing that there is cogent reason to depart from the agency’s decision to refuse access (s42E of the District Court Act). The agency bears the specific onus of establishing that the determination is justified (s48 of the FOI Act). If the agency fails to justify the determination then almost inevitably the appellant will succeed. If on the other hand the agency does not justify the determination then in the case of other than “restricted documents” that will not necessarily be the end of the matter. That may still leave alive between the parties the issue, on which the appellant bears the overall onus, namely whether there is cogent reason to depart from the decision.
[18] Above at [5]-[6]
[19] Above at [10]
I agree with this approach. As the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority:[20]
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[20] (1998) 194 CLR 355 (footnotes omitted)
Despite these misgivings, because counsel took a differing view, and in deference to the judge in Konieczka, I propose to deal with the matter on the basis of the approach taken in Konieczka, rather than requiring the appellant to identify cogent reason.
The authority of police prosecutions to prosecute
Before considering the merits, there is one further issue deserving consideration. It was at first submitted by the respondent that SAPOL did not have the direct right to prosecute offences in this State. It was said that right resides in the Director of Public Prosecutions, pursuant to the Director of Public Prosecutions Act 1991 (SA). Section 7 thereof confers powers (amongst others) on the Director to “lay charges of indictable or summary offences against the law of the State”: s 7(1)(a), to “prosecute indictable or summary offences against the law of the State”: s 7(1)(b), and to “enter a nolle prosequi or otherwise terminate a prosecution in appropriate cases”: s 7(1)(e).
The capacity of the police to exercise prosecutorial functions was initially said to derive by way of delegation from the Director under s 6A of the Director of Public Prosecutions Act. This confers the capacity to “delegate to any suitable person any of the director's powers or functions under this Act”. The significant point for the present discussion is that the Director of Public Prosecutions is an exempt agency under Schedule 2(k) of the FOI Act, so that the Director’s office is not subject to the legally enforceable right of access to documents erected by s 12 of the FOI Act.
Had this been the case, the situation might have attracted what is sometimes described as the Carltona principle, deriving from the decision of the Court of Appeal (UK) in Carltona Ltd v Commissioners of Works.[21] This principle was referred to in passing by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia,[22] when in footnote 68 they refer also to Minister for Aboriginal Affairs v Peko-Wallsend Ltd;[23] Re Patterson; Ex parte Taylor.[24]
[21] [1943] 2 All ER 560
[22] [2010] HCA 41; BC201008390
[23] (1986) 162 CLR 24 at 37–38 per Mason J; [1986] HCA 40
[24] (2001) 207 CLR 391 at 449–453 [176]–[188] per Gummow and Hayne JJ; [2001] HCA 51

In written submissions filed by the respondent on Christmas Eve, it is now conceded this was not in fact the position. Whether the authority to prosecute derives from the Police Act 1998 (SA), or from the common law right of individuals to bring charges, the parties are now agreed there is no relevant exemption, as there is in the case of the DPP.
The merits
On appeal it was conceded by the appellant that documents relating to purely personal affairs would not be pursued and nor would those under clause 6(3)(a) of Schedule 1, relating to protecting the identity of children. Those documents save for a few passing comments below, may therefore be ignored. Moreover in light of these proceedings, the intervening party waived any interest or confidentiality residing in his solicitors’ correspondence with police prosecutions, except for two paragraphs in two letters, referred to later.
For the purposes of this appeal, the potentially relevant categories of exempt documents are those affecting law enforcement and public safety (clause 4), affecting the unreasonable disclosure of personal affairs (clause 6(1)), the unreasonable disclosure of information containing allegations or suggestive of criminal or otherwise improper conduct not established by judicial process (clause 6(2)), internal working documents (clause 9), documents subject to legal professional privilege (clause 10), documents relating to judicial functions (clause 11) and documents containing confidential material (clause 13).
The court was supplied with a confidential affidavit of Senior Sergeant Gentgall, to which were exhibited all the subject documents marked up so as to indicate where redactions were made, as well as those documents wholly subject to non-disclosure. This is in accordance with standard practice in these matters: Rann v SA Water (No 2).[25] This document has been kept in safe custody. It is now convenient to turn to the specific claims for exemption under Schedule 1 to the FOI Act.
[25] (1996) 187 LSJS 438
Clause 4 documents affecting law enforcement and public safety
What remains in document 16 is a redacted section dated 19/11/08, naming several people. Gathered from reading the police file, these persons are in the nature of potential leads or sources of information relevant to the investigation of the charge. The claim for exemption on the ground of prejudice to the effectiveness of investigative methods and procedures contrary to the public interest was therefore correctly taken (clause 4(2)(iii)).
Clause 6(1) documents affecting personal affairs
Under the rubric of this provision, further disclosure was originally sought of documents 1, 2, 3, 7, 18, 25 and 40C. Clause 6 to Schedule 1 reads:
6—Documents affecting personal affairs
(1)A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
(2)A document is an exempt document if it contains allegations or suggestions of criminal or other improper conduct on the part of a person (living or dead) the truth of which has not been established by judicial process and the disclosure of which would be unreasonable.
(3)A document is not an exempt document by virtue of subclause (1) or (2) merely because it contains information concerning the person by or on whose behalf an application for access to the document is made.
(3a)    A document is an exempt document if it contains matter—
(a)     consisting of information concerning a person who is presently under the age of 18 years or suffering from mental illness, impairment or infirmity or concerning such a person's family or circumstances, or information of any kind furnished by a person who was under that age or suffering from mental illness, impairment or infirmity when the information was furnished; and
(b)the disclosure of which would be unreasonable having regard to the need to    protect that person's welfare.
Upon inspecting the documents identified above, it is plain that in the case of documents 1, 2, 3 and 7, only very small snippets of information were excised to protect the personal information contained therein. It might be added that document 3 was additionally redacted, to protect disclosure of a child’s name (clause 6(3a), Schedule 1). Even though the context might reveal the identity of that child to the applicant, wider protection is necessary, because the documents may be used at large once obtained.
Turning to document 18, an exemption was claimed over merely three lines therein. These incorporate an internal police note of representations made by the intervener’s lawyers, so that will be dealt with in substance later. The same comment and the same categorisation applies equally to document s 25 and 40C and will therefore be dealt with under the claim for exemption under clause 9.
Clause 6(2) unproven conduct
The first of these documents is no 16, from which a child’s name only was properly redacted.
The exemption claimed however for document 17 under the rubric of clause 6(2) was not applicable, so that will stand or fall when it comes to the clause 9 exemption, because it is in the nature of an internal working document discussing the prospects of obtaining a conviction. Document 20 lies in the same category, the information contained therein being practically a mirror image of that contained in document 17. Document 21 entitled “charge discontinuance notice”, has been entirely refused and is plainly an internal working document, and for that reason will be considered in relation to clause 9. It is pertinent to point out that at various points there are certainly references to untested allegations of the requisite kind protected by clause 6(2): Priebe v SA Police.[26] So that even if released, it would be heavily redacted on that account alone.
[26] [2007] SADC 119 at [24]
Documents 22E and 22G comprise internal operational requests for certain checks to be made on the intervening party, of purely an investigative nature. The claim for protection under clause 4 was abandoned, although one that would have succeeded, under clause 4(2)(ii), if maintained. By the same token the claim to protection under clause 6(2) is correctly made as the document is suggestive of unestablished improper conduct. Exactly the same analysis applies to documents 22F and 22G.
On the other hand document 22J is in its very nature, one substantially protected in the first place by clause 6(2) and in any event falls to be considered under clause 9, as it is an internal police document relating to the investigation of the assault against the intervener. The final document in this category, 40H, does not in my view come within the purview of clause 6(2), but does under clause 9, for the reasons outlined later.
Clause 9 internal working documents
Clause 9 to schedule 1 of the FOI Act provides as follows:
Part 3—Other documents
9—Internal working documents
(1)     A document is an exempt document if it contains matter—
(a)     that relates to—
(i)    any opinion, advice or recommendation that has been obtained,   prepared or recorded; or
(ii)    any consultation or deliberation that has taken place, in the course of,                   or for the purpose of, the decision-making functions of the   Government, a Minister or an agency; and
(b)     the disclosure of which would, on balance, be contrary to the public interest.
What is involved here, to quote from the judgment of O’Bryan J in Accident Compensation Commission v Croom:[27]
… a balance being struck between the public interest … in the proper administration of the law, which demands the disclosure of all relevant material, and a competing public interest … in withholding the material because it would be injurious … to the public to disclose such material.
[27] [1991] 2 VR 322 at 328
It now remains to consider documents 15, 17, 18, 20, 21, 22F, 22G, 22J, 25, 40C and 40H in this context. Of these clause 9 was originally invoked only with respect to documents 15, 17, 18, 21, 22J and 25. Each one of these contain communications between police officers recording various opinions, advice, recommendations, consultations or deliberations made in the course of the decision to lay the charge in the first place and to discontinue in the second. The appellant’s counsel was put on notice during the course of the hearing, that clause 9 might nevertheless be relevant even if not initially relied upon, an issue addressed by the appellant in her further written submissions of 17 December 2010.
All the above documents bar number 15 were considered earlier, for different reasons. Before dealing with each specific document, it is important to place the claim for exemption under clause 9 in its context. In form the exemption was raised because these were internal working documents, or communications between police prosecutors and their superiors, concerning the conduct and ultimate resolution of the assault charge against the intervener. It was contended disclosure would inhibit the written expression of honest opinions between police prosecutors and do likewise with respect to advice given to them by operational officers investigating such matters. This would only serve to compromise their obligation to continually assess the adequacy of evidence or the merits of prosecution. In broad terms it was said therefore that disclosure was contrary to the public interest.
According to Superintendent Gray the officer in charge of police prosecutions, internal guidelines were issued with respect to the conduct and disposition of prosecutions, and of particular relevance here, the exercise of the discretion not to proceed with a prosecution. These guidelines are substantially similar to the publicly available prosecution policy, developed by the DPP, Exhibit R5.[28] There was an instruction from the Director of Public Prosecutions in August 1999 to the Commissioner of Police to “direct your prosecutions to operate in accordance with these guidelines”. Police prosecutions comprises some 176 prosecutors in 17 locations around the State. They handle a combination of 70,000 summary and indictable offences each year.[29]
[28] T110.37-111.11
[29] T104.1-15
The cornerstone of the policy is that a charge should only proceed if there “is a reasonable prospect of conviction being secured”. Numerous matters are identified as relevant considerations pertinent to that decision. The policy contains references to a “continuing obligation to assess the evidence as the matter proceeds”. In an affidavit filed with the court, Superintendent Gray indicated that he felt it would be detrimental to prosecutors, would inhibit the free exchange of views and opinions and would disinhibit proper decision making according to such guidelines, if those communications were amenable to disclosure. He deposed therein:
Consequences of disclosure
13.If the exempt matter in the above documents were disclosed under the FOI Act, I believe that there would be adverse effects on the integrity of the decision-making process as it relates to the commencement and discontinuance of prosecutions. Officers would be inhibited in expressing their opinions in writing in internal documents if they were aware that the documents might be disclosed under the FOI Act. The decision to lay a charge or to discontinue a charge involves an exercise of judgment. It requires the careful weighing of a number of factors. It is important that all relevant factors, including the opinions of experienced officers, are taken into account in making these decisions. Opinions may involve an element of surmise and conjecture. This is legitimate so long as the opinions are honestly and reasonably held.
14.Decisions of this nature often require an assessment of the credibility and motives of witnesses and parties. These are sensitive issues but they are fundamental to prosecution policy. SAPOL officers are expected to record their opinions and recommendations on these issues in an appropriately professional manner and to stand by the views expressed. However officers should not be personally exposed to the ire of disappointed parties who take issue with the decisions made. Nor should individual officers be identified as the sole or primary decision-maker when the reality is that decisions of this nature are made after consideration by a number of officers.
15.It is important from an organisational point of view that all opinions, advice, recommendations, consultations and deliberations relating to these decisions be recorded in writing because of the number of officers involved and the need for decision-making that is consistent and based on all relevant material. The requirement to record a recommendation in writing (as with document 21) is also likely to produce a well argued case and therefore a sound decision. A written record is also important if the relevant decision is subsequently the subject of a formal complaint to the Police Complaints Authority.
I frankly doubt that much evidence was needed in this respect. The potential threat to candour must be assessed objectively: McKinnon v Secretary Department of Treasury.[30] It is a matter of common sense that if the free exchange of views expressed in the context of the prosecutorial guidelines found their way into the public arena, that would clearly have a chilling affect on the frank expression of such views.
[30] (2006) 228 CLR 423 at 465
It may be readily accepted that as a rule, police prosecutors do not have the benefit of the formal qualifications of legally trained DPP personnel and they lack the independence and accountability that inheres in the DPP: Nemer v Holloway.[31] Such considerations may well have led to the deliberate omission of SAPOL from the list of exempt agencies spelled out in Schedule 2 of the FOI Act. By the same token police prosecutions form a very small section of SAPOL. The fact remains however that Parliament has nevertheless designated internal working documents as exempt documents. Moreover “disclosure which will inhibit frankness and candour in future … communications is likely to be contrary to the public interest”: Re Howard v Treasurer of the Commonwealth of Australia.[32] Of course there is a clear public interest in the fair administration of the criminal justice system: DPP v Smith.[33]
[31] (2003) 87 SASR 147 at [23-25]
[32] (1985) 7 ALD 626
[33] [1991] 1 VR 63 at 71
It is ancient law that the prosecutorial discretion to prefer a charge was non-justiciable, originally because that decision was regarded as solely within the prerogative of the Crown: R v Prosser,[34] and Barton v The Queen.[35] This principle was applied in R v Williams,[36] and R v Kokless,[37] and acknowledged again by the High Court of Australia in Maxwell v The Queen.[38] It is qualified only by the capacity of the court to prevent an abuse of its process: R v Kent; Ex parte McIntosh,[39] R v Jell; Ex parte Attorney-General.[40] Otherwise the courts had no power under common law to halt a prosecution, unless the charge is defective, caught by a plea in bar, or discloses no offence: R v B(F).[41] These principles reflect a wider public interest, as distinct from the interests of an individual or victim, such as the appellant: Sinclair v Mining Warden of Maryborough.[42]
[34] (1848) 11 Beav 306 (50 ER 834)
[35] (1980) 147 CLR 75 at 90-91, and 94-95
[36] [1936] QWN 3
[37] [1936] QWN 23
[38] (1996) 184 CLR 501 at 512-514 and 534-535
[39] (1970) 17 FLR 65 at 70
[40] [1991] 1 Qd R 48 at 53-54 and 62
[41] [2010] 2 Cr A pp R 35 at [13-21]
[42] (1975) 132 CLR 473
The status of negotiations between the police prosecutions and the defence in this state, begins with Rule 26 of the Magistrates Court Rules 1992 (SA). This requires both parties to define the precise matters in issue, and to fully explore the possibility of disposing of charges other than by way of trial. Rule 26.02 obliges them when giving effect to these requirements: “to … confer fully and frankly”. In aid of these mandates, both sides are required to attend pre-trial conferences: Rule 26.06. These are not open to the public and nothing said therein “shall be made the subject of any comment at the trial”: Rule 26.07. The purpose of the pre-trial conference has been held to be procedural, in aid of caseflow management principles: Police v Childs.[43]
[43] (2000) 76 SASR 425
A very similar structure exists in the District and Supreme Courts with the very same purposes in mind: Supreme Court Rules 1992 Rules 7.01-7.15, District Court (Criminal and Miscellaneous) Rules 1992, Rules 6.01-7.15. Equally nothing said in the course thereof can be used or made the subject of any comment subsequently. Finally for the purposes of the present discussion, it is not irrelevant that police prosecutions perform an identical role to that of the DPP in the case of summary offences, and exercise the same discretions regarding prosecutions under the same guidelines, for which the DPP is immune from FOI: McKinnon v Secretary of Department of Treasury.[44]
[44] (2006) 228 CLR 423 at 465
It is against this regime as a whole that the pre-trial discussions between prosecuting police and as between them and the defence side as to the decision to prosecute, must be judged. Such communications are premised upon the free flow of information and frank discussions, in the belief that they will not be disclosed elsewhere. They are equally premised on the full and frank exchange of opinions, advice, recommendations, consultations and deliberations between police officers in that process. It is in that very context that an examination of the application for the disclosure of prosecutorial communications under the freedom of information regime, must be made and the application to exempt under clause 9 – and if it comes to it, clause 13 - must be duly considered.
The subject documents now under consideration are all in the nature of internal discussions, expressing opinions, giving advice, making recommendations and deliberating on the merits of proceeding with the assault charge. The redactions of about four column lines in document 15 contain comments by an investigating officer designed for the assistance of police prosecutions, therefore the exemption was correctly taken. There is a strong public interest in protecting the frank and honest expression of such views.
Document 17, contains discussions as to the necessity imposed by the guidelines of considering the prospect of securing a conviction, coinciding in content on the same question in documents 15, 18, 20, 21, 22J and 25 (the latter also contains a short reference to police methodology in gathering evidence for a prosecution), so these stand in precisely the same position, quite apart from the separate matters relating to most of them discussed earlier. In each instance having looked at the confidential material carefully, the claims under clause 9 were obviously rightly made, for the reasons already articulated. Disclosure is not in the public interest at all. It might be added that document 20 records an indication made by defence counsel in court, so that it would be additionally protected by Rule 26 of the Magistrates Court Rules.
Finally there are those numbered 40C and 40H, letters written by Caldicott & Co. to police prosecutions. The former expressly purports to the written “without prejudice for the purpose of negotiation only”. It contains representations made in confidence and fall plainly within clause 9, as well as clause 13. The latter relates to investigations Caldicott’s themselves undertook, no doubt on instructions from the intervening party. It discloses in the expectation of confidence, certain lines of enquiry they were pursuing through certain named people. The other subject mentioned in the redacted portion of that letter, seeks disclosure of information as part of the continuing obligation of prosecutorial disclosure, which derives from a different stream of discourse altogether: Grey v The Queen.[45]
[45] (2001) 75 ALJR 1708

In the result the former subject matter plainly relates to the personal affairs of the intervener. Disclosure would reveal lines of enquiry the intervener was providing in the course of preparing his defence to the charge, which would not ordinarily be a matter of public access or interest. The former is also duly exempt under clause 6(1) as it involves the unreasonable disclosure of personal affairs. The exemption relating to allegations of requisite conduct under clause 6(2) was in addition, correctly taken. It might be added that it would have been proper to claim exemption anyway under both clauses 9 and 13.
Clause 10 documents subject to legal professional privilege
Because of the importance this issue has assumed, it is worth adding that the correspondence from Caldicott & Co. was in all probability subject to the exemptions under clause 10, that is as documents subject to legal professional privilege. Even though protection under clause 10 was not claimed, this correspondence discloses information or instructions of the intervener as an accused person, divulged in the course of negotiations with police prosecutions. Although this situation is clearly distinguishable from R v Reci,[46] letters written in the belief that a situation of confidentiality pertains, would at first sight appear to be protected under clause 13: Everingham v Director-General of Education.[47] The case of R v Ellul[48] suggests this understanding of confidentiality has been in place for a long time when it comes to dealings with prosecutors, but as a decision relating to the discretionary rejection of evidence, it has no other bearing on the current discussion. If legal professional privilege arises, it is one erected under the general law and would therefore not be amenable to disclosure under the FOI Act: McGuirk v University of New South Wales.[49]
[46] (1997) 70 SASR 78
[47] Unreported District Court, 13.11.92
[48] (1990) 158 LSJS 10 at 14-17
[49] (2009) 75 NSWLR 224 at [31-34], [40] & [92]
Clause 13 documents containing confidential material
In any case the material supplied in the expectation of confidence by Mr Caldicott would have been exempt under clause 13. Clause 13 provides:
13—Documents containing confidential material
(1)     A document is an exempt document—
(a)     if it contains matter the disclosure of which would found an action   for breach of confidence; or
(b)     if it contains matter obtained in confidence the disclosure of   which—
(i)    might reasonably be expected to prejudice the future supply   of such information to the Government or to an agency; and
(ii)    would, on balance, be contrary to the public interest.
The material supplied by Mr Caldicott was obtained by police prosecutions with the expectation of confidence being held on both sides. If that confidence was removed there can be no doubt that the future supply of information from the defence side would substantially diminish and for that reason it is contrary to the public interest to disclose. Solicitors would simply stop supplying such information, whereas it is in the public interest to promote confidential negotiations.
The respondent has made it clear that it does not rely on clause 13(1)(b). Mr Swanson submitted in any case that exemption no longer applies because “the proceedings to which it relates has been terminated for good”. However the latter point cannot be accepted because it is open for a fresh charge to be laid. The mere withdrawal of the charge does not constitute a plea in bar: R v Justices of County Tyrone,[50] Bailey v Bailey,[51] Broome v Chenoweth.[52] Furthermore the court is entitled to intervene in the public interest if it considers the issue important enough, although should only do so exceptionally: Sankey v Whitlam,[53] District Court – Civil Rules 2006, 6 DCR 286(2), Conway v Rimmer.[54]
[50] [1912] 2IR 44 at 48
[51] [1930] SASR 57 at 59
[52] (1946) 73 CLR 583 at 594 and 598
[53] (1978) 142 CLR 1 at 44-45 & 58-59
[54] [1968] AC 910 at 950
It is doubtful that such communications fall within the exemption relating to judicial functions as delineated in clause 11 of Schedule 1. The Caldicott letters were not prepared for the purposes of proceedings, as witness statements or expert reports for instance, are. Clearly they were not “prepared by or on behalf of a court or tribunal”. The only exemption serving to preserve confidences in written negotiations and representations between the defence and public prosecutions, is the confidential material exemption: clause 13.
Discretionary disposition
There is a further consideration. On 10 September 2010 the Crown Solicitor’s Office provided to the appellant a substantial summary of the reasons for discontinuance of the assault charge. This became Exhibit R3 in this appeal. It read:
SAPOL came to the view that there was no longer a reasonable prospect that [the intervener] would be found guilty of the charge of assault.
At the time that SAPOL decided to discontinue the prosecution (November 2008), the following factors were taken into account in reaching the above conclusion:
1.     There were no truly independent witnesses to the incident which gave rise to the      charge of assault (the incident).
2.     Two potential witnesses of the events occurring immediately prior to the incident      declined to provide statements.
3.     The incident occurred in the context of on-going litigation in the Family Court between the defendant and the alleged victim’s sister.
4.     Both the defendant and the alleged victim and her family had made serious     allegations about the other prior to the incident.
5.     There was reputed to be a film record of the incident but this was not produced      when requested and no fully satisfactory explanation was given.
6.     The alleged victim changed an aspect of her statement when proofed.
7.     Given the physical circumstances of the incident (child running down a corridor), it was thought that a court could not exclude the possibility that contact was    accidental.
8.     The alleged victim had suffered a pre-existing injury and conceded, on proofing,     that the incident had simply exacerbated the injury.
9.     There was a delay of 10 days in the reporting of the incident.
SAPOL considered that a number of the above factors might reflect on the credibility and motives of the prosecution witnesses if the matter went to court.
The factors numbered 2, 4, 5, 6 and 8 only came to the prosecution’s attention after the charge of assault was laid.
Having read all the unredacted material, this summary is both accurate and comprehensive. Accordingly if the “suppressed” material was released, the only additional information the appellant would gather from the internal police documents, would be to ascertain which police officer held what opinions as to discontinuance of the assault charge. That being so, the court would have refused relief on discretionary grounds in any event, as being for all practical purposes futile: SZBYR v Minister for Immigration and Citizenship.[55] Not only would disclosure serve no useful purpose in furthering the central objectives of the FOI Act, it would not be in the public interest, since all that further disclosure would achieve, would be to gratify the curiosity of the appellant: DPP v Smith,[56] Osland v Secretary, Department of Justice.[57] As the FOI Act is concerned with access to documents, it should not be used as a vehicle for the collateral review of the merits of underlying decisions: Crewdson v Central Sydney AHS.[58]
[55] (2007) 228 ALJR 1190 at [29], [87] and [91-92]
[56] [1991] 1 VR 63 at 73
[57] (2008) 234 CLR 275 at [118]
[58] [2002] NSWCA 345 at [24]
For the above reasons the appeal is dismissed. The respondent has discharged the burden of establishing that the determination in each instance was correctly made. It necessarily follows that no cogent reason emerges for departing from the decision of the agency in respect of any of the subject documents. There are valid wider claims for exemption than those relied upon in some cases. There is no practical utility in further disclosure in any event. There will be a direction that the confidential book of documents be retained for 30 days and then returned personally to Mr Swanson.