German v State of Victoria

[2020] VCC 1517

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CI-18-02673

Konstantin German	Plaintiff
v
State of Victoria	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2020
DATE OF RULING:	25 September 2020
CASE MAY BE CITED AS:	German v State of Victoria
MEDIUM NEUTRAL CITATION:	[2020] VCC 1517

REASONS FOR RULING

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Subject:STATUTORY INTERPRETATION

Catchwords:            Application by plaintiff – civil proceeding – discovery – production of body-worn camera footage – protected information – whether the State may grant access to the footage to civil litigants

Legislation Cited:     Surveillance Devices Act 1999 (Vic); Surveillance Devices Regulations 2016 (Vic); Justice Legislation Amendment (Body-worn Cameras and Other Matters) Act 2017; Surveillance Devices Act 2007 (NSW)

Cases Cited:State ofVictoria v Intralot Australia Pty Ltd [2015] VSCA 358; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; NSW Commissioner of Police v Zurich Australian Insurance Ltd [2016] NSWCA 365; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292

Ruling:  

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Seeman	Robinson Gill Lawyers
For the Defendant	Mr R Gipp	Victorian Government Solicitor’s Office

HER HONOUR:

1In this proceeding, the plaintiff brings claims of false imprisonment, battery and assault against the defendant alleging that on 30 June 2015, during the Metropolitan Remand Centre (“MRC”) riots, prison officers kicked him, struck him with a baton, and handcuffed him and threw him to the ground after a Corrections’ dog bit him.

2On 25 May 2020, the defendant filed and served an affidavit of documents that disclosed the existence of body-worn camera footage from two prison officers which depicts images relevant to this proceeding (“the footage”). The use and disclosure of such footage is governed by Division 1 of Part 5 of the Surveillance Devices Act 1999 (Vic) (“the Act”).

3Having considered the relevant provisions of the Act, the defendant submits that it is precluded from releasing the footage to the plaintiff in this proceeding and that to permit inspection of the footage will constitute a criminal offence under s 30E the Act.

The issue

4The issue for determination is whether the footage may be inspected as part of the discovery process in this proceeding, given the provisions of the Act.

5Section 30E of the Act makes it a criminal offence for a person to intentionally, knowingly or recklessly use, communicate or publish any information that is protected information. The parties agree that allowing the plaintiff or his legal representatives to inspect the footage as part of the discovery process would constitute a “use” of the footage.

6For the sake of this preliminary ruling, it is appropriate to proceed on the basis that the footage is “local protected information” for the purposes of s30F of the Act, and that, if an exception to the prohibition on disclosure or use is made out, the footage may be released by the State to the plaintiff.

The parties’ submissions

7The plaintiff seeks access to the footage on two bases.

8First, that the proceeding falls within s 30F(1)(d) of the Act, which permits the use, communication or publication of “local protected information” if it is necessary for “an investigation of a complaint against, or the conduct of, a public officer within the meaning of this Act”. The plaintiff says that the words “investigation of a complaint” are not specifically defined in the Act and should be construed broadly, to include civil proceedings, for a number of reasons: it would be incongruous to permit disclosure of the footage, as the Act does in relation to complaints to IBAC, Professional Standards, or the Ombudsman, but to prevent disclosure in a civil complaint relating to the identical allegations; the same incongruity arises in relation to permitting disclosure in disciplinary proceedings but preventing disclosure in civil claims; and it would infringe the plaintiff’s statutory right to discovery under the Rules of Court.

9In making this argument, the plaintiff relies on the decision of the Victorian Court of Appeal in State ofVictoria v Intralot Australia Pty Ltd[1] (“Intralot”).

[1] [2015] VSCA 358.

10There, the Court of Appeal noted the existence of a line of authority to the effect that, generally, where legislation seeks to enact a secrecy provision which would impinge on court procedures, including discovery and inspection, the legislation will need refer expressly to courts. However, when comparing s 10.1.31  and s 10.1.30 of the Gambling Regulation Act 2003 (Vic), the Court of Appeal noted that only the former of those sections referred to a “court” and precluded an order for inspection because the prohibition specifically referred to production in a court of a document or any protected information; whereas s 10.1.30 of that Act did not preclude an order for inspection of discovered documents as it referred to “someone else” and prohibition on disclosure to “a person” was not to be interpreted as including a prohibition on disclosure in the context of a court proceeding.[2]

[2] Ibid [54]-[55], [111].

11Alternatively, the plaintiff submits that the words “of a civil proceeding” are to be read into the phrase in s 30F(1)(d) of the Act so that it reads: “for an investigation of, or a civil proceeding relating to a complaint against or the conduct of, a public officer with the meaning of this Act”.

12The defendant submits that on an appropriate construction of the phrase “investigation of a complaint”, the State is prohibited from disclosure of the footage in civil proceedings. Secondly, it submits that there is no basis for reading any words into that phrase in s 30F(1)(d) of the Act.

Statutory interpretation

13I note that the Act and the Surveillance Devices Regulations 2016 (Vic) are silent on the issue of disclosure and inspection in civil proceedings, despite addressing disclosure issues for educational purposes, for criminal, disciplinary, coronial proceedings, and family violence matters. I also note that there are no cases that have interpreted s 30F(1)(d) of the Act.

14In interpreting this section, it is necessary to consider the Act as a whole, as well as the relevant extrinsic material.

15Legislation relating to body-worn cameras was introduced into the Act on 18 April 2018 in the Justice Legislation Amendment (Body-worn Cameras and Other Matters) Act 2017 (“the 2017 Act”).

16Section 1(a) of the 2017 Act states that the purposes of the Act are to:

(i)to facilitate the use of body-worn cameras and tablet computers by police, ambulance officers and prescribed persons to record private conversations in the course of their duties without a warrant under that Act; and

(ii)to extend restrictions on the use, communications and publication of information through the use of surveillance devices to body-worn cameras and tablet computers by police, ambulance officers and prescribed persons; …

17In his second-reading speech, the then Attorney-General stated that the Bill enables body-worn cameras to be worn by front-line police for use in prosecutions, as evidence in police disciplinary matters and for police training.[3] The Attorney-General also stated:

The Bill ensures there are adequate protections against the unauthorised disclosure of the footage captured by the cameras. Use of the footage will only be permissible in certain circumstances, such as for police training and the use in law enforcement duties.[4]

[3]        Victoria, Parliamentary Debates, Legislative Assembly, 9 August 2017, 2191 (Martin Pakula, Attorney-General).

[4]        Ibid.

Is a civil proceeding “an investigation of a complaint against a public officer”?

18The terms “investigation” and “complaint” are not defined in the Act. Accordingly, these terms must be considered in the context in which they appear in the Act and in furtherance of the purposes of the Act.[5] 

[5]        Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69].

19The context here is that of an Act which provides a prescriptive regime as to the circumstances permitting the use, communication or publication of body-worn camera footage. The wording of the Act is consistent with the stated purposes of the Act insofar as body-worn camera footage is concerned, which is to provide for a “restricted and limited regime” for the disclosure of that footage, and that it will only be used in “certain circumstances”. Those circumstances, which are listed in the Act, include use for police training and in law enforcement duties.

20Although there is no reference to a “court” in s 30E of the Act, the literal and purposive interpretation of that section to preclude disclosure/inspection is consistent with the restrictive and limited regime which permits disclosure/inspection in the circumstances expressly provided for in the Act as follows:

(a)   the investigation of an offence;

(b)   the making of a decision whether or not to bring a relevant proceeding in respect of an offence;

(c)   a relevant proceeding in respect of an offence;

(d)   an investigation of a complaint against, or the conduct of, a public officer within the meaning of this Act or a public officer within the meaning of a corresponding law;

(e)   the making of a decision in relation to the appointment, re-appointment, term of appointment, termination or retirement of a person referred to in paragraph (d);

(f)    the keeping of records and the making of reports by a law enforcement agency in accordance with the obligations imposed by Division 2;

(g)   an inspection by the Victorian Inspectorate under s 30P;

(h)   an inspection by the Commonwealth Ombudsman under a provision of a corresponding law that corresponds to s 30P;

(i) an investigation under the Privacy and Data Protection Act 2014 or the law of a participating jurisdiction or of the Commonwealth concerning the privacy of personal information;

(j)    the education and training of prescribed persons or persons belonging to the same class of prescribed persons; and the education and training of prescribed persons or persons belonging to the same class of prescribed persons; and

(k)   any prescribed purpose.[6]

[6]        Surveillance Devices Act 1999 (Vic) s 30F(1), s 30F(1A).

21I consider that in light of the heavily prescribed nature of the regime imposed by the Act, had Parliament intended disclosure of protected information to the courts (and parties) in the context of civil proceedings, then this would have been expressly stipulated in the Act. It is not.

22I note that the decision in Intralot dealt with quite different legislation to that being considered in this case. In any event, however, I note that in that case, the Court of Appeal held that there is no principle that requires interpreting secrecy provisions so as to preserve the greatest degree of disclosure,[7] not least because powers over discovery are not part of the inherent powers of the court: they are statutory in origin. Rather, it is “a question of interpreting the words in the light of their purpose and context”.[8]

[7]        State ofVictoria v Intralot Australia Pty Ltd [2015] VSCA 358 [49].

[8] Ibid.

23In interpreting s 30 of the Act, the decision of the NSW Court of Appeal in NSW Commissioner of Police v Zurich Australian Insurance Ltd[9] (“Zurich”), is of assistance, as it dealt with similar legislation.

[9] [2016] NSWCA 365

24In Zurich, the NSW Court of Appeal examined “protected information” which consisted of audio recordings obtained from the use of a surveillance device under warrant. The Court held that, whilst the NSW Police Commissioner could produce the recordings to the Court under subpoena without committing an offence, using it in evidence in the civil proceeding would constitute an offence against s 40 of the Surveillance Devices Act 2007 (NSW). Similarly to the Act, the NSW Act’s prohibitions were not absolute, and certain sections permitted the use, communication or publication of that information, inter alia, where the information had been disclosed in open court, or where any information had entered the public domain, in the making of a decision whether or not to bring a prosecution, etc.

25The question for the Court of Appeal was whether the subpoena should be set aside because, even if the material were inspected, as a matter of law no use could be made in a civil proceeding of the material sought to be produced. The Court of Appeal concluded that in the absence of any circumstances falling within one of the exceptions in s 40 of the Act, the prohibition in s 40(1) of the Act prevented the use of the protected information by Zurich in or in relation to the proceedings. In reaching this conclusion, Meagher JA concluded that the permitted exceptions in the NSW Act:[10]

…throw light upon the meaning of the words of prohibition because of the scheme of s 40 (a general prohibition and defined permitted exceptions) which assumes that the prohibition would otherwise apply to and prevent any use, publication or communication for the expressly permitted purposes.

[10]        Zurich [2016] NSWCA 365, At [45], per Meagher JA; Ward JA at [54] & Emmett AJA at [62] & [68].

26I consider it appropriate to apply the same reasoning in the instant case. I consider that the words “investigation of a complaint” cannot be interpreted to include civil proceedings. To do so would be to ignore the plain language of the phrase, its context, and the language and purposes of the Act.

Can the court read in the words “or a civil proceeding relating to” after the word “of” into the exception in s 30F(1)(d) of the Act so that it reads “investigation of, or a civil proceeding relating to, a complaint against a public officer”?

27I consider for the following reasons that there is no basis for reading in the alleged missing words relied on by the plaintiff.

28On the authorities,[11] a court could only “read in” alleged missing words if it knows the mischief with which the Act is dealing; is satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved; and is able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.

[11]        Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, 302.

29In this case, the first two of these preconditions cannot be met. The plaintiff failed to articulate the mischief upon which it relies to establish the basis for reading in the alleged missing words. However, it appears clear that, read as a whole, the mischief with which the Act is dealing is the appropriate use of body-worn camera footage and the Act is restricting the use of this footage to particular identified circumstances.

30Secondly, given the detailed provisions in the Act concerning when the footage can be used, communicated or published, including in the context of criminal proceedings, it cannot be suggested that Parliament has overlooked the possibility that the footage may be relevant to civil proceedings.

31Support for this conclusion can be found in the existence of an extensive list of exceptions to the prohibition, which are set out in s 30E and s 30F of the Act. In the light of the heavily prescribed nature of the regime imposed by the Act, it is reasonable to conclude that the list of instances when disclosure will not constitute a criminal offence under s 30E of the Act constitutes an express exclusion of discovery and inspection or disclosure in civil proceedings. Had Parliament intended to permit disclosure of protected information to the courts (and parties) in the context of civil proceedings, this would have been expressly stipulated in the Act. This conclusion is consistent with that reached in relation to similar legislation by the NSW Court of Appeal in Zurich, which is referred to above at paragraph 24.

32For these reasons, I reject the submission that the proposed words should be read into the phrase “investigation of a complaint” in s 30F(1)(d) of the Act.

Conclusion

33It follows from the above that s 30E of the Act prevents the State from allowing inspection of the body-worn camera footage in question. I acknowledge the difficulties which this prohibition may cause for plaintiffs in civil proceedings.