Director of Public Prosecutions v 'SNB'

[2002] NSWSC 694

CITATION:	DIRECTOR OF PUBLIC PROSECUTIONS v 'SNB' [2002] NSWSC 694
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11393/02
HEARING DATE(S):	24 June 2002
JUDGMENT DATE:	24 June 2002
PARTIES :	'SNB'
JUDGMENT OF:	Adams J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL :	P A Johnson SC (Plaintiff) C Smith (Defendant)
SOLICITORS:	S E O'Connor (Plaintiff) Richard Davies (Western Aboriginal Legal Service Ltd) (Defendant)
CATCHWORDS:	Confidentiality - relationship between s34 Ombusdman Act 1974 and s164 Police Service Act 1990 - admissibility of statement taken in course of investigation of complaint
LEGISLATION CITED:	Justices Act 1902 Ombudsman Act 1974 Crimes Act 1900 Suitors Fund Act 1951
DECISION:	See paragraphs 7 and 8

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

MONDAY 24 JUNE 2002

11393/02

DIRECTOR OF PUBLIC PROSECUTIONS v SNB

JUDGMENT

1 HIS HONOUR: The plaintiff appeals under s104(2)(b) of the Justices Act 1902 from an order of a Magistrate in the Dubbo Children's Court made on 4 February 2002 dismissing an information laid against the defendant alleging an offence under s314 of the Crimes Act 1900 for making a false accusation against a person, intending that person to be the subject of an investigation of an offence, knowing the said person to be innocent of it.

2 The defendant was served with a Field Court Attendance Notice under s100AB of the Justices Act 1902 by a police officer, Inspector Boyter, in respect of this alleged offence and the information came before the Magistrate for hearing on 4 February 2002.

3 Inspector Boyter was the first witness in the prosecution case. During his evidence the Prosecutor sought to tender a statement taken from the defendant by Inspector Boyter on 13 March 2001 after complaint was made under the Ombudsman Act 1974 about a police officer. Objection was taken to the tender of the statement upon the ground that it was inadmissible by virtue of s34 of the Ombudsman Act 1974. Following a voir dire examination the objection was upheld. The effect of this ruling was that the prosecution was unable to establish an essential element of the case and, accordingly, the information was dismissed.

4 The short question is whether s34 of the Ombudsman Act 1974 applies to information obtained in the course of an investigation by a police officer acting otherwise than under the direction of or at the instigation of the Ombudsman. Section 34 of the Ombudsman Act 1974 relevantly provides:

“Disclosure by Ombudsman or officer

(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, disclose any information obtained by the Ombudsman or officer in the course of the Ombudsman's or officer's office, unless the disclosure is made:

(a) where the information is obtained from a public authority, with the consent of the head of that authority or of the responsible Minister,
(b) where the information is obtained from any other person:
(i) with the consent of that person, or
(ii) for the purpose of proceedings (including an inquiry under section 197 of the Police Service Act 1990 ) with respect to the discipline of police officers before the Commissioner of Police or the Government and Related Employees Appeal Tribunal,
(b1) for the purpose of any proceedings under Division 2 of Part 5 of the Freedom of Information Act 1989 arising as a consequence of a determination made by the Ombudsman under section 24 or 43 of that Act,
(c) for the purpose of any proceedings under section 37 or under Part 3 of the Royal Commissions Act 1923 or Part 4 of the Special Commissions of Inquiry Act 1983 , or
(d) for the purpose of discharging his or her functions under this or any other Act.
Maximum penalty: 10 penalty units.

(2) Subsection (1) does not prevent the Ombudsman from furnishing any information relating to:

(a) a matter arising under a law of another State, the Commonwealth or a Territory of the Commonwealth, or

(b) an undertaking that is or was being carried out jointly by New South Wales and another State, the Commonwealth or a Territory of the Commonwealth, to a person exercising under a law of that other State, the Commonwealth or that Territory, as the case may be, functions similar to those exercised by the Ombudsman under this Act.
(2A ) Subsection (1) does 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.
(3) Without limiting the operation of subsection (1) (a), in the application of subsection (1) to and in respect of information received in the course of an investigation under this Act of police conduct, the reference in that subsection:
(a) to a public authority---shall be construed as a reference to a police officer,
(b) to the head of that authority---shall be construed as a reference to the Commissioner, and
(c) to the responsible Minister---shall be construed as a reference to the Minister administering the Police Service Act 1990 .
(4) If:
(a) the Ombudsman, or an officer of the Ombudsman, is to give evidence before, or to produce the whole or any part of a document to, the Joint Committee, and
(b) the evidence proposed to be given, or the whole or any part of the document proposed to be produced, would disclose information obtained by the Ombudsman or officer, in the course of his or her office, from a public authority or other person, and
(c) the public authority or other person has informed the Ombudsman or officer that the information is confidential, the Ombudsman or officer must make a request under section 31H (1) for the evidence to be taken in private or for a direction to be given that the document, or part of the document, be treated as confidential.
(5) In the case of information obtained from a public authority or other person as referred to in subsection (4), a reference in section 31H to the consent in writing of a witness, in relation to the disclosure or publication of evidence, is to be construed as a reference to the consent in writing of the public authority or other person.”

5 On its face this provision would not affect the evidence sought to be tendered. However, the matter is somewhat complicated by the provisions of s 164 of the Police Service Act 1990 which provides-

Application of section 34 of Ombudsman Act 1974
(1) In the application of section 34 (1) of the Ombudsman Act 1974 to information received by the Ombudsman, or an officer of the Ombudsman, in the administration or execution of this Part:
(a) the reference in that subsection to a public authority is to be construed as a reference to a police officer, and
(b) the reference in that subsection to the head of that authority is to be construed as a reference to the Commissioner, and
(c) the reference in that subsection to the responsible Minister is to be construed as a reference to the Minister administering this Act.
(2) This section does not limit the operation of section 34 (1) (a) of the Ombudsman Act 1974 .

6 In my view s164 of the Police Service Act 1990, when read with s34 of the Ombudsman Act 1974, does not have the effect contended for by the defendant below. It does not convert an inquiry by the police officer into an inquiry by the Ombudsman, nor does it convert the police officer into an officer acting in the course of either the Ombudsman's Office or that of an officer of the Ombudsman. It is not sought by the defendant to argue to the contrary.

7 It follows, therefore, that the evidence sought to be admitted was properly admissible and should have been received. Accordingly, the dismissal of the information is affected by a significant error of law. I quash the order dismissing the information and direct that the proceedings be remitted to the Magistrate to be dealt with according to law.

8 The defendant is to pay the plaintiff's costs. In the circumstances I grant the defendant a certificate under s6 of the Suitors Fund Act 1951.

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Last Modified: 08/09/2002