Garrett v Quach and Ors
[2001] VSC 469
•28 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 8105 of 2001
| PETER JEFFREY GARRETT | Plaintiff |
| v | |
| HUY QUACH AND OTHERS | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 NOVEMBER 2001 | |
DATE OF JUDGMENT: | 28 NOVEMBER 2001 | |
CASE MAY BE CITED AS: | GARRETT v. QUACH & ORS. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 469 | |
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CATCHWORDS: Certiorari – Decision of Judge of County Court – No error of law on face of record – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the Defendant | Ms. S. MacDougall | Victorian Government Solicitor |
HIS HONOUR:
On the 29th of June 2000 the present plaintiff, Peter Jeffrey Garrett, at the Melbourne Magistrates' Court pleaded guilty to two counts of intentionally and without lawful excuse destroying or damaging property. The magistrate recorded a conviction on each of the counts and ordered that the plaintiff be released on a community based order for a period of six months from the 29th of June 2000. The magistrate also made a forfeiture order and ordered the plaintiff to pay compensation of $7,829 to the Victoria Police.
The plaintiff appealed from those convictions to the County Court.
On the 10th of October 2001 the appeal was mentioned before Her Honour Judge Lewitan.
It would appear that on the 1st of August 2001 the plaintiff had issued two subpoenas, firstly a subpoena to the officer-in-charge of the St Kilda Road Police Station seeking production of the running sheets maintained by two police officers who were involved in the case and relating to the 7th of December 1999; and secondly a subpoena to the officer-in-charge of the Ethical Standards Unit requiring production of all files relating to disciplinary complaints concerning the two police officers in question.
In due course the documents referred to in the first subpoena, that is the running sheets, were produced to the plaintiff. However, when the matter came before Her Honour on the 10th of October, although ten files were produced to the court in response to the subpoena to the Ethical Standards Unit, the Unit opposed the production of some of the documents contained in the file claiming public interest immunity. The Unit then sought, and was granted, an adjournment of the hearing of the matter to enable it to brief counsel.
The matter came back before Her Honour on the 17th of October. As I understand it the plaintiff appeared on his own behalf, and one of the two police officers in question, Huy Quach, and the Chief Commissioner of Police were represented by counsel. Her Honour heard full argument in relation to the claim for public interest immunity and then reserved her decision to give consideration to the matter.
On the 19th of October Her Honour delivered her ruling. The ruling is quite extensive, having regard to the issue Her Honour was required to determine, covering a little more than eight typed pages.
The conclusion Her Honour arrived at was that the plaintiff should be permitted to inspect certain of the documents produced by the Ethical Standards Unit save and except documents which Her Honour, who of course had read the documents, had marked with a red sticker. In so far as those documents were concerned, it was Her Honour's opinion that those documents were the subject of public interest immunity.
On the 25th of October 2001 the plaintiff filed an originating motion in the court whereby he seeks the following orders:
(1)An order of or in the nature of certiorari to quash the ruling made by Her Honour Judge Lewitan to the effect that the plaintiff not be entitled to view all subpoenaed documents.
(2)A declaration that the plaintiff be entitled to view all subpoenaed documents.
The scope of the remedy of certiorari was considered by the High Court in Craig v South Australia [1994-1995] 184 C.L.R. At p.163. At 175 the court said:
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'."
Later the court continued:
"In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record".
There is no suggestion in the present case that Her Honour did not have jurisdiction to make the decision she did in the matter, nor is it suggested that Her Honour failed to observe some applicable requirement of procedural fairness, or that there was fraud associated with the proceeding.
Accordingly, to succeed the plaintiff must establish that there is error of law on the face of the record. In this case the record does not only include the formal order of the court, it also includes Her Honour's reasons for her ruling. The paragraph in Her Honour's reasons relevant for present purposes is paragraph 18. It reads:
"In paragraph 3 of ESD's affidavit" (ESD, of course, being the Ethical Standards Division) "the ESD claims public interest immunity for materials created by investigators including various reports, case summaries, opinions and administrative recommendations because 'the methods and procedures of the ESD are needlessly disclosed'. I have examined the documents in the ESD files bearing in mind the requirement to balance the need to protect the confidentiality of some of the documents in the ESD files because of the sensitive nature of some of the matters dealt with by the Ethical Standards Division against the evidentiary value and importance of the documents in this case. In Law Institute of Victoria v Irving [1990] V.R. 429, the Full Court of the Supreme Court held that even though statutory bodies may be required by their legislation to maintain confidentiality and resist disclosure, this does not apply to disclosures made to the court. In such cases resistance should be made on the basis of the content of the document, not the class of documents. Accordingly insofar as the materials created by the investigators do not pass the 'on the cards' test expressed by Gibbs, C.J. in Alister's case, I have formed the view that those documents should not be produced and I have marked those documents with a red sticker".
The reference to the "on the cards" test is a reference to Alister [1984] 154 C.L.R. 404. In Alister's case Gibbs, C.J. said at p.414:
"Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence".
Although I endeavoured to explain to the plaintiff this morning the limited nature of my inquiry, at one stage he did seek to reargue the application and, therefore, require me to make a general review of the decision. In that regard he suggested that I too should read the documents in question, but that is not the function of this court when it is dealing with an application for certiorari on the ground of error on the face of the record, and that much is clear from the passage in Craig's case to which I previously referred.
I have carefully considered Her Honour's decision and I can find no error on the face of the record. Her Honour, as her reasons make clear, was more than mindful of the principles to be borne in mind when determining the matter, and clearly did so. In that situation the originating motion must be dismissed.
However, there is a second reason why I would dismiss the originating motion, that is for a reason referred to again by the High Court, this time in R v. Iorlano [1984] 58 A.L.J.R. 22. At the conclusion of its short decision in that case the court said:
"However, it seems necessary to repeat that it is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on questions of admissibility of evidence."
By filing the originating motion in this case seeking to challenge Her Honour's ruling in relation to the production of the documents in question the plaintiff has, of course, interrupted the ordinary course of the criminal proceeding brought against him, something which is, I agree, highly undesirable.
Accordingly, the originating motion filed in the court on the 25th of October 2001 will be dismissed.
MS MacDOUGALL: I seek costs, Your Honour.
HIS HONOUR: Do you resist the application on behalf of the first and second defendants in respect of the costs in the matter, Mr Garrett? Is there anything you would like to say as to why you, having failed to set aside Her Honour's order, should not pay the costs of the first and second defendants?
MR GARRETT: Yes, Your Honour, I feel that there has been judicial bias in this room here today. I will be seeking further instructions at which to overthrow your decision.
HIS HONOUR: Yes, thank you.
MR GARRETT: So I would be seeking advice.
HIS HONOUR: Yes. I see no reason why the costs should not follow the event.
Accordingly, I order that the plaintiff pay the first and second defendants' costs of the originating motion, including reserve costs.
MS MacDOUGALL: I wondered whether Your Honour would be minded to fix the costs?
HIS HONOUR: No.
MS MacDOUGALL: If Your Honour pleases.
HIS HONOUR: Yes, you may leave, Mr Garrett, thank you.
MR GARRETT: I also would just like to say I think Judge Lewitan and yourself are lawyers protecting - going against the freedom of the people. You are going against the freedom of the people.
HIS HONOUR: Mr Garrett, I know you have a reputation for violence. I will give you an opportunity to leave the court peacefully, otherwise I will send for the police and have you forcibly removed.
MR GARRETT: How could a policeman be sacked twice? This is an outrage. It is an insult. You are a liar.
HIS HONOUR: Good morning Mr Garrett.
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