DUPONT & UNWIN
[2014] FamCA 1003
•26 August 2014
FAMILY COURT OF AUSTRALIA
| DUPONT & UNWIN | [2014] FamCA 1003 |
FAMILY LAW – EVIDENCE – subpoena duces tecum – legitimate forensic purpose – public interest immunity – interests of justice require that documents not be produced – subpoena set aside – otherwise subpoena not oppressive – otherwise subpoena not an abuse of process
| APPLICANT: | Ms Unwin |
| RESPONDENT: | Ms Dupont |
| INDEPENDENT CHILDREN’S LAWYER: | Ms C Smith |
| FILE NUMBER: | MLC | 9645 | of | 2011 |
| DATE DELIVERED: | 26 August 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 26 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Ingleby |
| SOLICITOR FOR THE APPLICANT: | Nicola Hoobin |
| COUNSEL FOR THE RESPONDENT: | Ms Stoikovska |
| SOLICITOR FOR THE RESPONDENT: | Moores Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| COUNSEL FOR THE CHIEF COMMISSIONER OF POLICE (PARTY UNDER SUBPOENA): | Mr Lethlean |
| SOLICITOR FOR THE CHIEF COMMISSIONER OF POLICE (PARTY UNDER SUBPOENA): | Victorian Government Solicitor’s Office |
Orders
1.The subpoena issued at the behest of the respondent on 22 July 2014 to Inspector B, Inspector Workplace Standards, Care of the Officer in Charge, Victoria Police Fingerprint Facility Subpoena Management Unit, Victoria Police be set aside.
2.I permit the Chief Commissioner of Victoria Police to make an oral application to inspect the Court file now and in the future to take a copy of any affidavit or proof of evidence sworn, affirmed or provided by a current or former police officer other than the parties and Superintendent C.
3.I adjourn the said application to 8 September 2014 at 9.00 am (“the adjourned date”) for the purpose of according any deponent of an affidavit or witness in a proof of evidence described in paragraph 2 of this Order to be heard in opposition to the said application of the Chief Commissioner of Victoria Police.
4.In the event that there is no appearance by or on behalf of the witness on the adjourned date, the document be available for inspection and photocopying.
5.In the event that a witness appears on the adjourned date, it is intended that I will hear his/her objections to the said application and submissions from any parties to the proceedings and rule upon it.
6.Any party who has filed an affidavit or proof of evidence to which paragraph 2 of this Order applies and the Independent Children’s Lawyer forthwith notify the deponent/witness of this Order and that he/she has a right to be heard on the adjourned date.
7.For the avoidance of doubt, if a document is inspected and copied by the Chief Commissioner of Victoria Police pursuant to an Order of this Court the Chief Commissioner of Victoria Police, to the extent that it may be necessary to do so, be and is hereby released from any implied undertaking not to make other use of the document in the usual and lawful conduct of his business.
IT IS DIRECTED THAT:
8.The documents produced pursuant to the subpoena referred to in paragraph 2 of this Order be retained by the Court until further order or 30 days following the delivery of final orders and reasons for decision.
9.IT IS NOTED that the respondent mother has agreed to make a contribution to the costs of the Chief Commissioner of Victoria Police referrable to his application to set aside the subpoena filed 22 July 2014 (which application was successful), in the sum of $11,000 but those persons are having ongoing discussions, and hereby have liberty to apply for orders, in respect of the term of payment.
|
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dupont & Unwin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9645 of 2011
| Ms Dupont |
Applicant
And
| Ms Unwin |
Respondent
And
Independent Children’s Lawyer
And
Chief Commissioner of Police (Party Under Subpoena)
REASONS FOR JUDGMENT
Introduction
On 26 August 2014, after considering the objection of the Chief Commissioner of Victoria Police, I acceded to his application to set aside a subpoena to produce documents issued on behalf of the respondent mother, Ms Dupont, and said that I would deliver my reasons for decision subsequently. These are those reasons.
The subpoena requires production of:
The entire investigation file into the conduct of [Ms Unwin] born … including any report/s whether completed or not and including but not limited to all witness statements, recommendations, transcripts of interview or other recordings and notes in relation to any investigation by and not limited to [Inspector B].
Inspector B is the Inspector of Workplace Standards for Victoria Police. Relevantly for the subpoena, Inspector B has control of documents pertaining to 42 complaints lodged by 14 complainants with Professional Standards Command and/or the Human Resources Department, Workplace Standards Division against the applicant, Ms Unwin.
The subpoena was filed on 22 July 2014 and was expressed to be returnable on 30 July 2014.
On 16 July 2014 the Independent Children’s Lawyer had caused a similar subpoena to produce documents to issue, also directed to Inspector B, requiring production of “records of any Workplace investigations if completed and all Human Resources records in relation to those investigations in relation to” Initially, the scope of that subpoena was limited by agreement between the Independent Children’s Lawyer and counsel for the Commissioner but, subsequently, the subpoena was withdrawn in its entirety and I have not been asked to rule on any aspect of it. Any reference in these reasons to a subpoena is a reference to the subpoena referred to above issued at the behest of the respondent mother.
For ease of reference, I will refer to Ms Dupont by her name or as the respondent mother and to Ms Unwin by her name or as the applicant.
Production of documents
The Commissioner produced three folders of documents on 28 July 2014. The documents were produced for the purpose of the court having recourse to them in its determination of the Chief Commissioner’s objection. However, they are all the documents required by the subpoena.
The objection
A notice of objection to the subpoena in accordance with the Family Law Rules 2004 was filed on behalf of the Commissioner on 28 July 2014.
The Chief Commissioner seeks to set aside the subpoena:
… in whole as being without legitimate forensic purpose, and is oppressive and/or an abuse of process. If the subpoena is valid, the Chief Commissioner objects to the parties inspecting the documents produced on the grounds that each document is subject to a claim of public interest immunity and, thereby, confidentiality in them must be preserved.
Accordingly, the objection is in two parts. First, the Chief Commissioner contends that the documents caught by the subpoena have no legitimate forensic purpose, is oppressive, and/or an abuse of process. Second, he contends that the documents sought are subject to public interest immunity pursuant to s130(1) of the Evidence Act 2008 and ought not be disclosed because the balance of public interests weighs in favour of no-disclosure.
In order to provide context to the Chief Commissioner’s objection I will describe briefly the background to the substantive proceedings, the complaint process undertaken by Victoria Police and the outcome of the complaint process. Then I will deal with the issues raised in the Chief Commissioner’s objection in the following order:-
a)Whether the respondent Ms Dupont has not established a legitimate forensic purpose which entitles her to inspect the documents described in the subpoena;
b)Public interest immunity;
c)Whether the subpoena is oppressive and/or an abuse of process.
Submissions
I have had regard to the following written submissions:-
a)The submissions of the Chief Commissioner dated 18 August 2014; and
b)The submissions filed on behalf of Ms Dupont on 21 August 2014.
Pursuant to directions made by me on 19 August 2014, the applicant and Independent Children’s Lawyer were able to file and serve any written submissions by 4.00 pm on Thursday 21 August and Friday 22 August 2014 respectively, but neither elected to file any submissions.
Both counsel, Mr Lethlean for the Commissioner and Ms Stoikovska for the respondent mother, are to be complimented on their written and oral submissions which were concise and readily supported by copy authorities which were made available to all parties and to the court.
I also had the benefit of oral submissions.
Conduct of this hearing
The Chief Commissioner’s objection to the subpoena first came to the attention of the court (although not to my attention) before Registrar Mestrovic on 30 July 2014. It was not brought to my attention until the pre-trial mention on 19 August, which was only three working days before the trial of the substantive parenting application was to commence. It is unfortunate that it was not brought to my attention sooner. The parties had been aware of the dates for final hearing since 6 March 2014. Because the subpoena was served and the Chief Commissioner’s objection was raised relatively late in the process, the objection could not be dealt with prior to the final hearing date.
On Tuesday 19 August 2014 the Chief Commissioner’s objection could not be argued because the Chief Commissioner, through his counsel, sought to rely on certain affidavit evidence which was not then before the court. Counsel for the Chief Commissioner invited the court to examine the documents in respect of which objection was taken. There was no objection from any other party to me inspecting the documents. I was satisfied that the submissions by counsel for the Chief Commissioner could not be put by counsel, or properly considered by me, without me inspecting the subpoenaed material.
I granted leave for the Chief Commissioner to file an affidavit on the basis that the other parties to the proceedings are not permitted to have access to it nor are they entitled to be served with a sealed copy. A further affidavit was filed at the same time which was served on the other parties. That further affidavit is the same as the confidential affidavit save that certain facts and matters which the Chief Commissioner was satisfied should not be disclosed are redacted. Unless I indicate otherwise, a reference by me to Superintendent C’s affidavit evidence is a reference to the further affidavit which was common to all parties. It is not my intention to refer to or to discuss any redacted material.
I directed that the application of the Chief Commissioner to set aside the subpoena could proceed by way of written submissions with each party having an opportunity to be heard briefly in oral submission on 26 August 2014.
There was no dispute about the procedure to be followed by the court. As indicated earlier, counsel for the Commissioner filed an affidavit by Superintendent C which contained confidential material. I read the affidavit and I have regard to the contents of the affidavit. The parties, or their lawyers, have the further affidavit from which various details have been redacted.
The respondent mother did not seek to cross examine Superintendent C on his affidavit and, accordingly, he was excused and did not attend the hearing personally.
The respondent mother did not seek to cross examine Acting Commander M on Exhibit VP2 (the outcome of the internal complaint procedure) or on any of the information which is set out in the affidavit of Superintendent C.
In the absence of the other parties and their lawyers, I had a brief discussion with Counsel for the Commissioner which was, essentially, to familiarise myself with how the documents produced pursuant to the subpoena were set out.
I read the produced documents on 26 and 27 August 2014. There were three volumes of documents running to about 1,400 pages in total.
After reading the documents on 27 August 2014, I reconvened the court again in camera, heard some submissions from Counsel for the Commissioner and heard evidence from Acting Commander M. The evidence was to clarify some aspects of the documents, the meaning of some terms and the complaint procedure.
The parts of the proceedings which were conducted in the absence of the parties and their lawyers were transcribed but the audio recording of that part of the proceeding and any consequent transcript are subject to an embargo that only the Commissioner and the court are able to listen to the audio recording and/or obtain a copy of the transcript of those parts of the proceedings.
I reconvened the court and advised counsel for the Commissioner of the documents to which I was satisfied that a genuine forensic purpose attached and asked him to identify whether any of those documents were subject to a claim of privilege and, if so, what specific privilege.
I received brief submissions from Counsel for the Commissioner and Counsel for the respondent mother on the privilege. Counsel for the applicant made some submissions but those submissions were essentially about the process or the merit of the substantive proceedings.
I ruled on the privilege issue in favour of the Chief Commissioner.
As it happened, my considerations of the Commissioner’s objection consumed all but one day of the three days assigned for the final hearing of the parenting case and the matter was dealt with under pressure of time. After I ruled on the subpoena, the applicant and the respondent mother, with the assistance of their counsel and the Independent Children’s Lawyer, managed to agree on a suite of further interim orders which have progressed the matter consistently with the child L’s best interests. I made the orders which were sought by consent.
The final hearing of the substantive proceedings has been set down for hearing on 23 March 2015 estimated to take 5 days.
Background
These parenting proceedings concern L, (“the child”), who was nearly 4 years old at the time of the hearing. The issues to be determined in the substantive proceedings are whether parental responsibility for the child should continue to be shared between her biological mother Ms Dupont (the respondent) and her former partner Ms Unwin (the applicant), what time (if any) Ms Unwin should spend with the child and whether, as Ms Dupont seeks, the reference to Ms Unwin on the child’s birth certificate should be removed.
Both the applicant and the respondent mother are serving officers of Victoria Police. They were work colleagues and were in a domestic de facto marriage relationship the duration of which is in dispute. It is common ground that the child was conceived using IVF procedures and that she was born whilst the applicant and the respondent were living under the one roof.
The applicant was in charge of Section Q in which they both worked and was the supervising officer or superior of the respondent mother until after separation. The applicant and the respondent mother separated when the applicant left their home in or about August 2009. Following the separation, the respondent mother obtained a transfer. The applicant and the respondent have not worked in the same section since mid-December 2011.
The applicant and the respondent mother have not spoken to one another for any reason for years.
After separation, the respondent mother entered into a de facto relationship with Ms Z. Ms Z is also a serving member of Victoria Police. Some years ago Ms Z was in a de facto relationship with the applicant. There were no children of that relationship.
The respondent mother and the child now live with Ms Z and her daughter, N, who is older than the child L. They live in a semi-rural environment.
Parenting proceedings were initiated by the applicant Ms Unwin in this court in August 2012. There have been a number of interim hearings. The case reached the stage of a final hearing before Dessau J in April 2013 but resolved on an interim basis with provision for Ms Unwin to spend supervised time with the child. Orders were made on the basis that Ms Unwin is the child’s parent by operation of s 60H of the Act.
The documents produced under the subpoena to which the Chief Commissioner objects relate to an internal workplace police investigation into Ms Unwin’s professional conduct. This investigation was raised on the first day of hearing before me being 29 October 2013 and was referred to in my reasons for decision, the case neutral citation for which is [2013] FamCA 1068. Relevantly, paragraphs 4 to 6 inclusive of the reasons read as follows:-
4. During submissions, I was informed that there is an internal Victoria Police investigation into the conduct of Ms [Unwin]. Many people, nearly everyone in this case, is member of the Victoria Police Force, that is, the two mothers and Ms [Dupont’s] current partner, who is Ms [Z]. Ms Phelan, counsel for Ms [Unwin], referred me to pages 3 and 4 of the second report of Dr [A] dated 9 April 2013, in particular, to comments attributed to Ms [Dupont] in the following passages:-
It is [Ms Dupont’s] position that she was pressured into allowing [Ms Unwin] to see [the child] at all, and maintained her position that [Ms Unwin] had never been involved in [the child’s] life and continued to represent a great physical risk to [the child]. She does not believe that [the child] should see [Ms Unwin] in any form and considers that [Ms Unwin] is likely to physically harm [the child] (“her threats…She said she didn’t care [and that she] will drive that [motor vehicle] into me and [the child]”). She believes that [Ms Unwin] “hates [her] with a passion” [and] hates [Ms Z] with a passion”, such that [Ms Unwin] would kill [the child] to hurt them. She said “I don’t want her to do anything to my daughter. I know what she is like”. [Ms Dupont] stated that she believes [Ms Unwin] intends to harm [the child] and would have no compunction doing so because “there is no blood connection”.
…
[Ms Dupont] portrayed [Ms Unwin] as having a Machiavellian character who is all-powerful and manipulative (“she is playing the game”). She argued that she is being protective of [the child] and contended that she believes that [Ms Unwin] is being spiteful in her attempt to see [the child] (“I am trying to protect [the child]. I know this is out of spite”). She described [Ms Unwin] as “she is a bully, she is a stand over (sic), she is manipulative, she pushed people” and added “I have seen it myself” to suggest that she understands how [Ms Unwin] typically operates with other people. She also appeared to consider that [Ms Unwin] has psychopathic tendencies, stating that [Ms Unwin] is a “sick, sick woman” and describing her as lacking any empathy for any others or [the child].
5. Ms [Dupont] does not take issue with the accuracy of the report by Dr [A]. The Court is informed through Ms Phelan that some 18 to 22 members of Victoria Police have made complaints against Ms [Unwin] in relation to behaviour, and that that is in the process of being investigated. As best I can glean from the parties, there will not be any one formal hearing, but the investigative process is conducted on a number of interviews, and at some stage charges will either be laid against Ms [Unwin] or the complaint will not proceed. It is not certain, in the event that it is the latter, whether there will be a written determination as to what the complaint was, what charges were considered and not proceeded with. Therefore I have required each party to notify the Independent Children’s Lawyer as soon as they can of the outcome of the internal Victoria Police investigation.
6. It’s not my intention that these proceedings should cut across that investigation by disrupting it, either by requiring documents to be produced in this Court, very few of which could be tested in this Court, and it does seem to me that it is an investigation the outcome from which is relevant to these proceedings. In that context, Ms Phelan informs the Court that she is instructed that her client Ms [Dupont] expects that all of what she has said in the paragraphs extracted above will be proven to be correct in the Victoria Police investigation.
The respondent’s partner, Ms Z, is not a complainant in the internal work place police investigation by Victoria Police into Ms Unwin’s professional conduct. The respondent mother is a complainant.
On that first day of hearing, I ordered that the applicant and the respondent mother notify the Independent Children’s Lawyer promptly of the outcome of the workplace relations complaints against the applicant.
The complaint process
As Superintendent C deposed at paragraph 18 of his affidavit[1]:
The Victoria Police is not a separate legal person or body. The organisation of the Victoria Police is provided for in the Act. Pursuant to section 5(1) of the Act, the Chief Commissioner has, subject to the direction of the Governor in Council, the superintendence and control of the force. Police officers are appointed by the Chief Commissioner under section 8 of the Act. That power is also subject to the control of the Governor in Council. Under section 13 of the Act, police officers are required to take an oath of office. When they do so, they exercise an original authority. In exercising the powers and discretion of their office, police officers have imposed on them an obligation of personal and independent responsibility.
[1] Affidavit of Superintendent C sworn 20 August 2014.
I accept the evidence of Superintendent C as to the disciplinary and investigative regime under the Police Regulation Act 1958 (Vic) which has been replaced by subsequent legislation but which pertained to the complaint in this matter.
His evidence was that police officers are subject to a disciplinary regime set out in Part IV of the Police Regulation Act 1958 (Vic). Section 69 establishes conduct which amounts to a breach of discipline, s 70 allows the Chief Commissioner to establish a preliminary investigation into a police member’s conduct, s 71 allows the Chief Commissioner or their delegate to charge a member with a breach of discipline and s 82 enables the Chief Commissioner or their delegate to enquire into a member’s fitness for duty. Each division of the Act has its own processes which are provided for in the legislation.
Superintendent C deposed that the investigation into the applicant’s conduct, the ‘Unwin investigation’, commenced through the auspices of Workplace Standards as an internal matter and followed a full investigative process in accordance with the Police Regulation Act 1958 (Vic). Conduct is defined in s 86A of the legislation. Superintendent C deposed that, “conduct the subject of a complaint can amount to nothing more than incivility or rudeness, or the alleged failure to exercise a power or function held by the member”.
He deposed that the Professional Standards Command (‘PSC’) (now called the Ethical Standards Department) coordinates, oversees and conducts internal investigations. The Human Resources Department of Victoria Police, the Workplace Standards Division investigates complaints in relation to workplace conflict, bullying or sexual harassment. The PSC and Workplace Standards Division operate in parallel.
Superintendent C deposed that the PSC receives complaints either from the public or from members of Victoria Police. Complaints are recorded on a complaint incident form which is then treated as a confidential document. If the complainant is asked to make a statement regarding the complaint, their statement is attached to the complaint incident form. The complaint is then assessed and, depending on the seriousness of the complaint, an investigator from PSC or Workplace Standards is appointed. The investigator generally interviews the complainant if they have not already been interviewed and the investigator may then obtain additional information, such as statements from civilian and police witnesses. Superintendent C deposed at paragraph 31:
On occasions, these statements will reveal intensely private and personal information about the witness and other persons (including police colleagues). Documents and other property and information may be obtained in the course of an investigation. For example, a file may include photographs, audio or video recordings, or personal documents. This material will often be referred to in the reports written by investigators. It is regarded and respected as highly sensitive and confidential.
The Unwin investigation was conducted by the Workplace Standards Division without being referred from the PSC, however an independent member from PSC sat in on the recorded interview with Ms Unwin.
Superintendent C deposed at paragraph 40 that:
Workplace assessments like the [Unwin] investigation are an important tool used by Victoria Police to ensure that its workplaces are healthy, disciplined, and that any improper or inappropriate work practices or work conditions are identified and remedied. The senior management of Victoria Police require access to expert advice and recommendations to assist them in their task of managing both police officers and the work which police members do on behalf of the community. This advice is provided to management on a confidential basis.
If an investigator believes that a breach of discipline has occurred pursuant to s 69(1) of the Act, the investigator, if authorised by the Chief Commissioner, may direct any member of Victoria Police under s 86Q of the Act to produce relevant information or answer relevant questions. Ms Unwin was interviewed pursuant to s 86Q and witnesses and complainants provided either written responses or participated in audio recorded interviews.
In circumstances where the investigator does not believe that a member has committed a criminal offence or a breach of discipline it may be open to the investigator to invite the member to discuss the complaint with the investigator without engaging one of the statutory processes. That the discussion may lead to the member acknowledging carelessness or neglect and, thus, a resolution of the complaint by way of conciliation. Superintendent C deposed that this was the process which was followed in the Unwin investigation.
Superintendent C’s evidence was that members are more likely to respond openly and constructively to complaints if the investigation process is confidential.
The role of the investigator is to first collect information and evidence about the possible breach of discipline or commission of an offence without judging the veracity or quality of the evidence. Once the evidence has been collected, the investigator determines each allegation and characterises them as ‘substantiated’, ‘unfounded’, ‘unable to be determined’, or ‘not substantiated’. The investigator then submits a report to his/her superiors in Victoria Police stating their findings and making recommendations about the future management of the complaint.
The PSC investigator’s report is submitted to an Ethical and Professional Standards Officer. Workplace Standards investigation reports are submitted to senior management. Superintendent C deposed:
[The reports] generally contain detailed analysis and expressions of opinion about witnesses and evidence as well as the reasons for the investigator’s findings together with the methodologies employed. The purpose of these reports is to advise senior management of issues raised by the investigation and, where necessary, to offer comment or recommendations for further action. Such reports are for the information of senior management only and contain frank advices and commentary given in confidence.
If the complaint is found to be substantiated or the investigation reveals some shortcoming, the member may receive an admonishment notice, may be required to undergo counselling or some other form of management intervention. Superintendent C’s evidence was that admonishments and counselling are “considered at the lowest end of management intervention”. The complainants are usually notified of the outcome of the investigation, which was what occurred in the Unwin investigation. If a member is charged with a breach of discipline, the Chief Commissioner or their delegate may inquire into and determine the charge, applying the Briginshaw standard of proof.
Superintendent C deposed that in this case, he received the final report and recommendations from Inspector B together with a quick reference list and a draft admonishment (formal discipline notice) on 17 June 2014. He reviewed the final investigative report in his capacity as Divisional Commander together with Commander M and an Assistant Commissioner.
On 8 July 2014 the deponent met with Commander M and the Assistant Commissioner and “it was resolved that [Ms Unwin] be provided with workplace guidance only, regarding a breach of Information Security Management.”[2]
[2] Ibid [59].
Outcome of the complaints
The outcome of the complaint procedure was communicated to the applicant and to each of the complainants from 9 July 2014 onwards. For the purpose of this hearing, an email dated 23 July 2014 from Acting Commander M and addressed to one of the complainants (whose name has been redacted)[3] is accepted as an accurate record of the outcome of the investigation. Omitting formal and irrelevant parts, it reads as follows:-
[3] Exhibit “VP2”.
Inspector [B], of the Workplace Standards Division, investigated various allegations of bullying and other inappropriate behaviour by [Ms Unwin] made by fourteen complainants. She was assisted by Professional Standards Command (PSC) investigators.
Her investigation involved the taking of statements (written or digitally recorded) from the complainants, from ten witnesses and examining various documents. The PSC investigators interviewed [Ms Unwin] under the provisions of Section 86Q of the Police Regulations Act.
In her final report, Inspector [B] distilled the information provided by complainants and witnesses into forty-one allegations and reported that:
·12 were found to be Not Substantiated. This means that the weight of available evidence does not support the account of events as described by the complainant, but is weighted in favour of [Ms Unwin’s] account.
·16 were Unable to be Determined. This means that the available evidence does not permit the investigating officer to establish whether the complaint is true or not.
·14 were found to be Substantiated. This means the complaint was found to be true.
Inspector [B] recommended that [Ms Unwin] receive an Admonishment Notice in respect to the substantiated allegations.
Assistant Commissioner [O], Superintendent [C] and I independently reviewed Inspector [B’s] final report and assessed the evidence within it against each element of the proposed Admonishment Notice.
We concluded that there was insufficient evidence disclosed in the report to support any of the elements of the Admonishment Notice, with the exception of the allegation that [Ms Unwin] used another member’s computer password. In that case, however, we considered the circumstances of the breach to be of such a low level as to not warrant an Admonishment Notice.
Specifically, and amongst other things, we considered the following facts when arriving at our decision:
·The emails from [Ms Unwin] to another member telling that member to get into the sergeants’ office, to stop raising her voice, to watch what she is saying and to get off the phone seem to be reasonable directions from a manager to an employee. In the absence of adverse context, it is difficult to consider this communication anything but appropriate.
·There is no corroborated evidence that [Ms Unwin] did not like females working at [Section Q]. She denied this in her 86Q interview. Even if this were true, there is no evidence in the final report that this position was manifested in an inappropriate way. Moreover, as of today there is a total of seven (7) female members at the [Suburb P Section Q] who have been appointed during [Ms Unwin’s] tenure.
·There is no corroborated evidence that [Ms Unwin] set [work function R] targets. This allegation was never specifically put to her during the relevant discussion in her 86Q interview which centred around different productivity outputs between one and two-member patrols.
·The report concedes that, “The allegations made by members are extensive but with very little evidence available to support them, many allegations are hearsay and not witnessed by the member reporting same”.
·One complainant’s Workcover claim for bullying was rejected. Another’s was accepted, but not in relation to bullying. Another’s claim was rejected outright and another’s claim was accepted, but for PTSD in relation to an incident several years ago and not for bullying.
·Many of the issues determined by Inspector [Y] to be ‘Unfounded’ re an anonymous earlier complaint made against [Ms Unwin] that another member was treated more favourably than others were raised again as part of this matter.
·The report relies on an unsubstantiated claim that members subjected to negative PDA entries were not given chances to respond before the entries were posted. This issue was not raised with [Ms Unwin] in her 86Q interview and she, therefore, was not provided with an opportunity to respond.
·A sergeant witness refutes a complainant’s claim that [Ms Unwin] ever told him (the sergeant) to target other members, yet he makes a general statement about inappropriate comments by [Unwin] about other members. The report, however, is silent on what those comments were, who they were directed towards and the context in which they were made.
By way of final outcome, Superintendent [C] has counselled [Ms Unwin] in relation to using another member’s computer password. She will continue to be supported by her direct line manager, Inspector [T], in her current role [in Suburb P Section Q].
The resolution reached on 8 July 2014 and referred to above “finalised the investigation”. There is no review or appeal process. The complaint procedure is at an end.
Whereas the investigating officer (Inspector B) recommended that the applicant receive an Admonishment Notice in relation to the 14 substantiated allegations, the deponent, Commander M and the Assistant Commissioner:
… concluded that that there was insufficient evidence disclosed in the report to support any of the elements of the Admonishment Notice, with the exception that [the applicant] had used another member’s computer password.[4]
Notably, in relation to the inappropriate use of the password, the deponent, Commander M and the Assistant Commissioner “considered the circumstances of the breach to be of such a low level as to not warrant an Admonishment Notice.” There was no admonishment. Instead an entry was placed in the applicant’s Professional Development Assessment folder.
[4] Exhibit “VP2”.
Legitimate forensic purpose
Production of documents pursuant to a subpoena will not be required unless it can be demonstrated to the court that inspection of the documents serves a legitimate forensic purpose in the case, see Alister v R (1984) 154 CLR 404.
The Chief Commissioner acknowledges that he does not have access to any documents of the parties and does not know the precise nature of the issues in the litigation save to say that the proceedings relate to parenting arrangements for a child.[5]
[5] “VP1” [3]
It was submitted on behalf of the mother Ms Dupont that she resists the parenting order sought by Ms Unwin “on the basis that she contends the Applicant is a person who has an intimidating, controlling and emotionally manipulative personality.” The mother’s experience of Ms Unwin in their relationship is said to be “such that it has caused [her] to fear the applicant and be anxious … in the event the Applicant obtains the orders she seeks, or anything like them, the Applicant is likely to behave in a similar manner towards the child and thereby subject the child to similar emotional abuse.”[6] Furthermore, it was submitted by the respondent mother Ms Dupont that:-
[6] “R1” [2b]
(f)… the documents sought, and in particular the complaints and witness statements setting out the particulars of any words, actions or behaviours complained of about the Applicant, have potential value as to the issue between the parties and not just some “hypothetical” issue (Attorney General (NSW) v Lipton [2012] NSWCCA 156) because:
(a)The material is relevant to the issues in dispute, including issues around the child’s safety and well-being;
(b)The material (particularly [B’s] report) is relevant to the credit of the Applicant and her character;
(c)It has probative value to show a tendency to act in a manner which is the same or similar in nature to the conduct alleged by the Respondent in her affidavit by reference to other complaints;
(d)It is not a fishing expedition as fourteen of the complaints were found to be substantiated by the original investigating officer, inspection of the material would allow the Respondent to properly plead her case;
(e)The relevant documents might be potentially required for evidence at the trial and might be useful in cross-examination;
(f)The fact that some material accessed might not ultimately be able to be adduced at trial is not determinative of an application to inspect documents produced in answer to a subpoena;
(g)The ultimate internal decision of the disposition of the complaints does not bind the trial judge as to the relevance or weight this Court might give the words or behaviours alleged in the context of a parenting case. Particular word or behaviours may be judged by a police officer as not sufficient to constitute bullying, aggressive, intimidating or controlling behaviour in the workplace. Given its nature, the police force is a workplace with a robust environment. The same behaviours, however, within personal relationships might constitute family violence as defined in sec 4AB. The propensity for such behaviour may well be adjudged to be against the best interest of the child.
It is apparent that the submissions made on behalf of the respondent Ms Dupont were confined to how the documents described in the subpoena may or might be of assistance to her but fall short of identifying how the documents will materially assist her case and facilitate the conduct of the proceeding. That said, the submissions were necessarily made without the respondent or her advisers having had access to the documents.
It is an interesting scenario in that, on the one hand, the Chief Commissioner objects to the subpoena on the basis, inter alia, there is no legitimate forensic purpose but he does not know what issues are raised by the case and what issues require determination. On the other hand, the respondent Ms Dupont submits that the evidence may assist her case but does not know what the evidence is. It is a scenario which impels the court to examine the documents so that the necessary test can be applied to the actual facts of the case albeit that, if public interest immunity defeats the entitlement of the respondent to call for production of the documents, all facts relevant to the balancing exercise will not be discussed.
In R v Saleam (1989) 16 NSWLR 14 (CCA), emphasis was placed on the need for the identification of a legitimate forensic purpose for which the subpoena was issued — that it is “on the cards” that it should be demonstrated that the documents sought would materially assist the party issuing the subpoena, see Sankey v Whitlam (1978) 142 CLR 1 at 414.
In Ragg v Magistrates Court of Victoria [2008] VSC 1 Bell J discussed the authorities in the context of challenge that an accused person who was seeking documents from the prosecution in a criminal trial had failed to demonstrate that the documents were sought for a legitimate forensic purpose. The discussion was as follows (citations omitted):-
89 The defence has to establish only that “it appears to be ‘on the cards’ that the documents will materially assist the defence.” That influential expression came from the pen of Gibbs CJ in Alister v R. That his Honour had in mind the non-restrictive application of that test can be confidently inferred from the example he immediately gave of its application:
If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.
90 In many subsequent cases, the courts have had to grapple with the problems created when the defence has arguably misused the right to issue a summons for production. That such misuse can impose intolerable and unacceptable burdens on prosecutorial agencies cannot be doubted. That the practice can undermine important principles, such as the rule against discovery in criminal cases, and the rule that it is for the prosecution, and not the defence or the court, to determine what documents should be provided to the defence, also cannot be doubted.
91 One very important response of the courts has been to require the defence to justify, in specific terms, the purposes for which the documents are sought. This is the leading statement of that principle by Hunt J in R v Saleam:
In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made.
92 The expression “on the cards” was used by Gibbs CJ in Alister v R as a metaphor to explain the applicable test. With respect, as a way of explaining that test, perhaps it has outlived its usefulness. As Cummins J showed convincingly in DPP v Selway, it can certainly mean different things in different contexts. But there is no doubt in my mind that Gibbs CJ did not use the metaphor to explain that the test was one of probability – that the accused had to show it was probable the documents would be useful to the defence. His Honour was contemplating something less, as the example he immediately gave (see above) would indicate. How should the courts state with greater certainty the test given to us by Gibbs CJ?
93 To answer that question, I think it is necessary to balance two competing considerations: first, ensuring the fair trial of the accused by giving the defence access to material documents; and second, protecting the prosecution, and prosecutorial agencies, from unjustified summonses to produce. We have already seen a similar balance is struck in defining the scope of the prosecutor’s duty to disclose. That duty extends, for example, to material which tends to assist the defence case, but not to all material held by the prosecution. We have also seen the same balance is struck in the human rights context. Articles 14(1) and (3)(b) of the ICCPR have been held to require the accused to have access to exculpatory material, which includes evidence that could assist the defence but, again, not everything held by the prosecution. In determining an objection to a summons to produce in the criminal law context, the court is really determining, after balancing those competing considerations, what a fair trial between the prosecution and the accused requires the defence to be given.
94 The issue of a more certain test has been considered in three recent cases from which a positive trend emerges that, by this judgment, I would continue. In none of them are the facts material, so I can go straight to the statements of principle, between which I see no significant difference. The first was Roads and Traffic Authority of New South Wales v Conolly. Adams J said this:
However, the obligation on the party calling on a subpoena to produce is ‘to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought.’ Where that is done, I do not think that it is necessary that the party needs to demonstrate more than that there is a reasonable chance that the documents in question will serve the purpose so specified.
The second is Felice v County Court of Victoria and Anor. Osborn J put the test this way:
It is sufficient in a criminal proceeding if the material before the court gives rise to a possibility which is not merely hypothetical, but sufficiently reasonable having regard to the circumstances as a whole, to justify production of documents because it is ‘on the cards’ they will materially assist the defence.
The third is DPP v Selway, where Cummins J said most emphatically of all:
On the basis of the above authorities, I consider the true test is whether there is a reasonable possibility that the sought-for information would materially assist the defence. Probability is too high a standard. Mere possibility is too low. The adverb ‘reasonably’ gives proper scope to the judge to determine the issue responsibly and objectively. Such a standard also is consonant with the principles of open justice.
95 I would adopt this approach, not only because it is not clearly wrong,but because I think it is correct. More specifically, a “reasonable possibility” test expresses in more certain language what Gibbs CJ probably had in mind when he used the “on the cards” metaphor in Alister v R, gives proper effect to the underlying fundamental duty of the court to ensure a fair trial and is consistent with international human rights and principles that Australia recognises. […]
96 In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought. A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.
97 The “reasonable possibility” test does not apply in all cases in a fixed manner as if the relevant considerations always have the same value. It is necessary to consider “the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of that issue” and, more generally, “the circumstances as a whole”. In doing so, it is necessary to give a “broad interpretation” to the issues in the case or, to put it another way, the “parties’ respective cases should not be restrictively analysed.” It is also important to pay due regard to the fact that “[d]efence lawyers are in a better position than a judge to make an appraisal of the value of information contained.” Lastly, as Pincus JA said in R v Spizzirri: “courts should be careful not to deprive the defence of documents which could be of assistance to the accused.”
I find Bell J’s discussion to be helpful and I am assisted by it. This is a parenting case but the stakes are similarly high to all concerned.
A subpoena to produce documents cannot be used as a mere fishing expedition. Ms Stoikovska referred to the decision in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 in which (at [254]) Owen J said, in effect, that a distinction is to be drawn between fishing in a pool for fish of a particular kind and dragging the pool to find whether there were any fish in there or not. I agree.
In Fried v National Australia Bank Ltd (2000) 175 ALR 194 (FCA), Weinberg J accepted that it may be legitimate to issue a subpoena directed to a third party in order to obtain documents for the purpose of impeaching the credit of a witness but he cast doubt as to whether such a subpoena should be issued solely for that purpose (at [25]–[28]) and held (at [29]) that it was inappropriate to permit a subpoena which “does little more than trawl for documents” which may be used for that purpose. In Liristis v Gadelrabb [2009] NSWSC 441, Brereton J accepted that “trawling” in this context was the same as “fishing”, but made it clear (at [5]) that it is not “fishing” to seek such documents when there are reasonable grounds to think that fish of the relevant type are in the pond or that it is “on the cards” that the relevant documents (even though they are relevant only to credit) will be elicited by the challenged subpoena. I do not accept the contention of the Chief Commissioner that this subpoeana is a fishing exercise.
It was submitted on behalf of the respondent Ms Dupont that the documents covered by the subpoena were relevant to issues in the substantive proceedings and that production of them would serve a legitimate forensic purpose because the documents relate to a series of complaints made by various persons against Ms Unwin which, if accepted:-
a)are corroborative of Ms Dupont’s evidence that the applicant is overbearing in the work place and was also overbearing, controlling and emotionally abusive to her in their non-work related life both during and after their relationship (of whatever duration the relationship was);
b)indicate that the applicant Ms Unwin is not a person with whom the child should have an on-going relationship having regard to the child’s best interests as the paramount consideration.
I do not accept that submission.
The fact that 14 serving police members have made professional complaints about the applicant Ms Unwin does not, in the absence of further evidence including but not limited to evidence of the complainants, entitle me to give weight to the fact that complaints were made. Even if the material establishes the factual basis of the complaints, I could not infer that the allegations are true or, absent other evidence, that the behaviour complained of impacts on Ms Unwin’s parenting capacity or is in some other way relevant to the issues in the substantive proceedings including the respondent’s allegations of emotional abuse. There are many explanations why a serving member of Victoria Police, or anyone else for that matter, may not be liked within their work place but still be a perfectly good parent and a partner who was not abusive or even callous or disregarding.
In the absence of evidence by an appropriately qualified person (expert) that persons about whom work place complaints are made are poor parents or abusive in their interpersonal relationships, evidence of the complaints is of very low or perhaps no probative value. However, the threshold to satisfy the court that there is a legitimate forensic purpose to documents sought under subpoena is a low threshold. The fact that such material, if required to be produced and inspected, may not be able to be adduced at trial because it is inadmissible, is not determinative of whether the threshold test of legitimate forensic purpose is met.
Here, the investigative officer, Inspector B recommended that Ms Unwin receive an admonishment. The unchallenged evidence of Superintendent C is that admonishment, together with counselling, is considered to be “at the lowest end of management intervention” as a disciplinary measure. It was also not challenged that, upon Inspector B’s final investigative report being reviewed by her superior officers they determined that there was an insufficient basis for Inspector B’s recommendation for an admonishment and that Ms Unwin should receive “workplace guidance only, regarding a breach of Information Security Management” – which is what occurred.
The respondent mother refers to and relies upon the finding by Inspector B that certain complaints were substantiated. She deals with the fact that those findings were not confirmed by police command by submitting “the ultimate internal decision of the disposition of the complaints does not bind the trial judge …”. I am not satisfied that re-running workplace disciplinary proceedings within this parenting case serves a legitimate forensic purpose or is at all appropriate.
In relation to the complaints which gave rise to the investigation, Ms Stoikovska invited me to draw a distinction between complaints for which statements were given voluntarily and statements which were made after a section 86Q notice was issued. It is not a distinction with which I am comfortable because many of the complaints were voluntarily made and then subject to clarification as a result of a s 86Q notice being served. It is also the case that one complaint, made voluntarily, was withdrawn.
Having regard to the threshold being a low threshold, I am satisfied that some documents which are described in the subpoena could materially assist the mother’s case and, it follows, the production of them is for a legitimate forensic purpose. This is not because of the reasons relied upon by Ms Dupont (see paragraph 69 above). It is because, if given access to the documents, Ms Dupont would be in a position to identify which members of Victoria Police had made complaints, voluntarily or not voluntarily, and could conceivably approach those members with a view to seeing if there is any relevant evidence to be given by that member. This is notwithstanding that the documents sought to be accessed by Ms Dupont would be inadmissible in the current form and the likelihood, which I regard as distinct, that subsequent evidence even if carefully composed and crafted around the facts dealt with in the documents might still not be admissible because it is not actually relevant to an issue in the parenting case.
I am only barely satisfied that the information contained in some of the documents produced could be of some small potential assistance to the respondent mother’s case. Superintendent C’s evidence that
conduct the subject of a complaint can amount to nothing more than incivility or rudeness ….
and that the only breach which he and Assistant Commissioner O were satisfied had been committed by Ms Unwin was
that [Ms Unwin] used another member’s computer password … [which was a] breach [at] such a low level as to not warrant an Admonishment Notice. –
are apposite on the facts of this case.
In conclusion, the documents which I read did not present compelling facts. If the threshold for demonstrating a legitimate forensic purpose was any higher than “low”, I would not have been satisfied that it had been demonstrated to exist.
Public interest immunity
There is no suggestion that the documents caught by the subpoena are not documents relating to a matter of state which are capable of being withheld by reason of public interest immunity at common law.[7]
[7] Section 130 of the Evidence Act applies to documents being adduced in evidence but the documents under consideration here have not yet reached that stage.
In R v Allister, Gibbs CJ set out the test to be applied when determining whether a claim for public interest immunity had been made out. His Honour said (at [412]):-
Sankey v Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required 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. The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest do require consideration – i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.
The evidence of Superintendent C includes the following statements:-
a)A statement prepared by an investigator for a complainant or witness is made on the basis that it is confidential and the contents will not be disclosed without the maker’s permission save for three exceptions:
i)for the purposes of an investigation by or on behalf of the PSC;
ii)for purposes connected with court proceedings arising from the complaint;
iii)for purposes connected with disciplinary proceedings arising from the complaint.
b)The member of Victoria Police who is the subject of the complaint is not permitted to read the complainant’s statement and, similarly, complainants are not permitted to read the police statement or view records of interview. Thus, Ms Unwin has not seen any of the complaint materials sought under the subpoena. Superintendent C specifically makes the point that, notwithstanding that Ms Unwin cannot see the complaint materials and none of the complainants can see anyone else’s complaint, the respondent Ms Dupont is seeking by way of a subpoena to inspect all material constituting the investigation.
c)Complainants and witnesses are promised confidentiality to enable the free flow of information during an investigation. Police witnesses are often colleagues of the member who is the subject of the complaint, which causes anxiety during the process of the investigation. “Disclosure of statements in civil proceedings would have an effect on witness’ candour in making statements to investigators, and hinder the investigator in discharging his or her public duties.”[8]
d)Frequently documents or items of property in a member’s possession are relevant to an investigation and if members consent to providing information, rather than being compelled to do so, it enables the investigation to proceed in a more efficient and timely manner. Members are aware that their involvement in an investigation is confidential.
e)The member who is the subject of the investigation (here Ms Unwin) is not afforded participation rights, such as a right to be heard or a right to question the complainant.
f)Inspection of an investigation file risks jeopardising the effective investigation into complaints by identifying complainants, witnesses, members the subject of the complaint or investigative methods and processes. Disclosure of a complaint without first obtaining the member’s consent risks prejudicing the member’s standing and reputation and could also cause undue stress to the member.
g)Inspection of an investigation file “may prejudice the fearless and thorough investigation of police complaints. Disclosure of opinions, advice and recommendations of investigative officers to their superior officers, and vice versa, jeopardises the free and frank exchange of information” about complaints. Inspection of the file may jeopardise public confidence in the investigation of complaints and subject the process to public criticism, “based on an incomplete or erroneous understanding of the legislative framework governing police discipline”.
h)Ms Dupont is a serving member of Victoria Police. She was involved in the investigation and seeks to inspect the investigation file in its entirety notwithstanding that she knows that all information in the file was provided by fellow members in a confidential setting.
i)“Complainants’ names and identities, and the subject matter of their complaints, are highly confidential and should remain so. It is not in the public interest for complainants’ identities and complaints to be provided to others, especially when there is no forensic purpose for the files to be viewed. This is especially so when the party issuing a subpoena is a serving member.”
j)Frequently allegations of misconduct by members are not substantiated, withdrawn, or not otherwise sustained and therefore police members who are the subject of a complaint or who provide evidence in relation to a complaint have an ongoing expectation that the conduct of the investigation will be confidential and will not be revealed to third parties.
[8] Affidavit of Superintendent C sworn 20 August 2014 [35].
The above evidence was not challenged, I accept it and take it into account in reaching my conclusions.
I accept the submission for the Chief Commissioner that seemingly innocuous information contained in complaints can, when combined with a reader’s background knowledge, lead to the ready identification of a complainant (see ASIC v P Dawson Nominees (2008) 66 ACSR 704). I am satisfied that the familiarity between serving police personnel at Suburb P Section Q means that it is not feasible to edit any of the complaints or to redact parts of the complaints so as to protect adequately the identity of the police members who made complaints or gave statements.
I am required to strike a balance between competing public interests. On the one hand, whether harm of the nature described by Superintendent C will be done if the documents described in the subpoena are produced. On the other hand, whether the administration of justice will be impaired or frustrated if I accept the submissions of the Chief Commissioner and Ms Dupont and her advisers and the other parties are not permitted access to the documents.
I am satisfied that the information contained in the three folders produced by Victoria Police are statements or commentary on statements which were made by serving members of Victoria Police in the knowledge and expectation that what they said would be confidential and not used for any purpose other than an investigation into Ms Unwin’s conduct as a police officer which investigation has now been concluded. I am satisfied that, to the extent that senior command within Victoria Police issued section 86Q notices (to compel statements by certain members), those notices were issued and the statements were made for the limited purpose of the enquiry into Ms Unwin’s conduct within the work place and not for any other purpose and that it was not contemplated by anyone that persons other than the investigating officer Inspector B and senior command officers would see the statements. In particular, it was not intended that complainants would see each other’s statements, that the respondent Ms Dupont would see the statements or that, absent prosecution or legal proceedings arising out of a complaint, that Ms Unwin would be entitled to see any of the statements.
I am satisfied that if the documents described in the subpoena were to be released or used for any purpose other than the purpose for which they were created, the fact of that release would be highly prejudicial to the ability of Victoria Police to properly receive and investigate complaints against police members because:-
a)disclosure of the statements would be in breach of the promises and assurances of confidentiality under which the particular statements were given;
b)henceforth, any police member could not be confident that the internal complaints process would be confidential with the effect that police members may not be as candid as they would otherwise be if they truly believed that confidentiality of what they say could be maintained;
c)henceforth, the internal investigation procedures into police conduct could be used for the ulterior and improper purpose of generating evidence in civil proceedings such as this proceeding;
d)inspection of the documents “may prejudice the fearless and thorough investigation of police complaints. Disclosure of opinions, advice and recommendations of investigative officers to their superior officers, and vice versa, jeopardises the free and frank exchange of information”;
e)inspection of documents may jeopardise public confidence in the investigation of complaints against police members.
Against the above considerations, I weigh the probative value in the substantive proceedings of the documents described in the subpoena and whether the administration of justice will be frustrated or impaired if I do not require production of the documents. In my assessment, the evidentiary value and the importance of the documents in the substantive litigation is small. Production of the documents described in the subpoena is unlikely to produce material evidence or, in my assessment, lead to material evidence being able to be obtained. I do not consider that the information and documents are of importance to the substantive proceedings. My comments are general but are necessarily constrained by the confidentiality which, ultimately, I am satisfied must be accorded to the documents and the submissions made on behalf of the Chief Commissioner in relation thereto.
For the avoidance of doubt, the benefit to family members and, through them, the child, of transparency of process and access to information (whether or not it is ultimately admissible) is not lost on me. I recognise that there is a benefit to parties to parenting proceedings in this court and, through them, to the child, to feel satisfied that they have been able to put all relevant evidence in support of his or her case. This benefit manifests itself in a number of ways, including, in the degree of compliance with orders, the longevity of the arrangements to which the orders relate and, probably always, to how the child(ren) is encouraged to adjust to any changes brought about by the orders. There are obvious deficits associated with not permitting a party access to documents to assist in the preparation of her case, regardless of whether the document or information can ultimately be adduced in evidence. I agree, with respect, with the comments of Gibbs J in Allister v R when his Honour referred to the circumstance of not wanting an accused person in a criminal proceeding to be left “with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done”. However, what may seem relevant and important to the respondent Ms Dupont, and those who advise her, may not be particularly relevant to or of importance in the court proceedings – which is my assessment in this instance.
In all of the circumstances, I am satisfied that the harm that would be occasioned by requiring compliance with the subpoena far outweighs any benefit that would flow from requiring the documents to be produced and allowing them to be inspected.
For the above reasons, I am satisfied that the subpoena should be set aside on the grounds of public interest immunity.
Is the subpoena oppressive?
It is submitted on behalf of the Chief Commissioner that the documents caught by the subpoena “are entirely irrelevant to any fact in issue between the parties”. I have already found that not be to the case. It is further submitted that “[It] is open to conclude that the inspection and usage of [the documents] is sought in order to embarrass or otherwise put pressure on the Applicant [Ms Unwin] and not for any identifiable legitimate purpose.”[9] I am not persuaded that is correct. Discord and embarrassment within Suburb P Section Q was extreme but those cards have been played. Publication of identifying characteristics in these proceedings is prohibited. My impression is that in trying to press the subpoena, the respondent Ms Dupont is acting more out of desperation than malice. Either way, pursuance by Ms Dupont in this regard is misconceived.
[9]“VP1”[56]
The documents which were produced for the purpose of arguing admissibility represent all of the documents which fit the description in the subpoena. The documents were numerous (1400 pages). I accept that in excess of 30 hours was expended in collating them. That expenditure of time and effort is relevant on the issue of costs and reimbursement of expenses. I do not find the subpoena oppressive, per se.
I am not satisfied that the subpoena is oppressive and I reject the Commissioner’s submission in this regard.
Is the subpoena an abuse of process?
The Chief Commissioner submits that, in using the subpoena to pursue more than the published outcome of the investigation (which is Exhibit “VP2”), the subpoena is an abuse of process. It is submitted that “[the] finding on the [Unwin] investigation for which workplace guidance was determined as the outcome, concerned the usage by the Applicant [Ms Unwin] of an internal security passcode of the Respondent [Ms Dupont] which had been provided to the Applicant by the Respondent; they were in relationship at the material time. Accordingly, and in these circumstances, the Respondent [Ms Dupont] should be taken to have issued her subpoena only for the purposes of seeking information to impeach the Applicant’s credit.”[10]
[10] “VP1”[43]
I am not satisfied that the subpoena was an abuse of process and I reject the Commissioner’s submission to the contrary.
Were it not for the public interest immunity point on which the Chief Commissioner has succeeded, I would have required production of the documents and allowed inspection. That is not to say that the documents and information would ever have been able to be adduced in evidence but the Respondent Ms Dupont would have had access to it. However, the public interest immunity point was successfully argued and that is the end of the matter.
Affidavits by other serving members of Victoria Police
Following my ruling, reference was made to certain documents on the court file that I have not read. There are affidavits by serving members which were filed by Ms Dupont or Ms Unwin in these proceedings. The Commissioner alleges, that providing that affidavit evidence was contrary to police regulations which require that any serving police member obtain permission from police command prior to giving evidence in a civil proceeding.
The Chief Commissioner has not read the affidavits. He seeks permission of the court to inspect the court file and to take copies of documents and, inferentially, to make such use of the documents as is consistent with his role as Chief Commissioner which, presumably, includes enforcing breaches of police regulations.
I required that the Commissioner provide notice to the deponents of the affidavits of his application to access the affidavits and I adjourned the matter accordingly. I commented that, to the extent that documents or affidavits were withdrawn by the filing party prior to the adjourned date, there would be no documents upon which the Commissioner’s application could be granted. Counsel for the Commissioner accepted that would be the case. Affidavits were subsequently withdrawn. For the avoidance of doubt, no future reliance ought to be sought to be placed on that evidence without any necessary permission having been forthcoming or there being adequate time well prior to the final hearing to argue the consequences of permission not having been sought and/or granted.
I certify that the preceding ninety nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 26 August 2014.
Associate:
Date: 14 November 2014
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