Horley v Baker and State of Victoria (Ruling)
[2013] VCC 1380
•29 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-11-02337
| DENIS JAMES HORLEY | Plaintiff |
| v | |
| ROBERT BAKER | First Defendant |
| and | |
| THE STATE OF VICTORIA | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 July 2013 | |
DATE OF RULING: | 29 October 2013 | |
CASE MAY BE CITED AS: | Horley v Baker and State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1380 | |
RULING
---
Subject:Subpoena – objection to production of documents.
Catchwords: Claim by a plaintiff for damages for false imprisonment, malicious prosecution, assault by threat and intimidation – objection to production of documents obtained through subpoena upon Chief Commissioner of Police and Independent Broad‑based Anti-corruption Commission – abuse of process – legitimate forensic purpose – public interest immunity.
Legislation Cited: Crown Proceedings Act 1958; Police Regulation Act 1985; Crimes Act 1958; Police Integrity Act 2008; Independent Broad‑based Anti-corruption Commission Act 2011; County Court Civil Procedure Rules 2008; Evidence Act 2008.
Cases Cited:Commissioner for Railways v Small (1938) 38 SR (NSW) 564; Universal Press Pty Ltd v Provest Ltd & Anor (1989) 87 ALR 497; Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd [1999] VSC 242; Burchell v Hill [2010] VSC 96; Oswal v Carson [2013] VSC 355; Messade v Baires Contracting Pty Ltd [2011] VSC 56; Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3; Woolworths Ltd v Svajcer [2013] VSCA 270; RHB v R [2011] VSCA 295; Middendorp v R [2012] VSCA 47; R v Zhang [2005] (2005) 227 ALR 311; Lockyer (1996) 89 A Crim R 457; Shaw v Yarranova Pty Ltd & Anor [2011] VSCA 55; Fried v National Bank Ltd [2000] FCA 910; Comcare v Maganga [2008] FCA 285; R v Roberts (2004) 9 VR 295; R v Mokbel (Ruling No 1) [2005] VSC 410; Murphy & Ors v The Commissioner of Police for The Metropolis [2012] EWHC 4123 (QB); Australian Competition and Consumer Commission v Pratt [2008] FCA 1373; R v Young [1999] NSWCCA 166; Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Ltd [2002] VSC 270; O’Brien v Chief Constable of South Wales Police [2005] UKHL 26.
Ruling: Objection to the production of subpoenaed material upheld – subpoenas set aside.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Dixon SC with Ms F Spencer | Robinson Gill |
| For Chief Commissioner of Police | Ms R Ellyard | Victorian Government Solicitor’s Office |
| For IBAC | Mr D D Gurvich | IBAC |
HIS HONOUR:
1 The plaintiff brought a proceeding against the first defendant, Robert Baker (“Detective Baker”), and the second defendant, the State of Victoria (“the State”), seeking damages, including aggravated and exemplary damages for psychological injury alleged to have been suffered by reason of the conduct of Detective Baker in the course of his duties as a police officer, over a period from 12 February 2008. It is alleged:
(a)On 12 February 2008, Detective Baker arrested the plaintiff and unlawfully imprisoned him as part of a process of “ongoing targeting and scapegoating” at a time when he was psychiatrically vulnerable;
(b)On 28 March 2008, he improperly arrested and detained the plaintiff at his work without reasonable cause;
(c)On 28 February 2008, he maliciously prosecuted the plaintiff for offences including attempting to pervert the course of justice, theft, dealing with the proceeds of crime and possession of child pornography (“the charges”);
(d)From 28 March 2008 to 9 April 2010, he “maintained” the charges which were subsequently dismissed or withdrawn;
(e)On 3 June 2008, he maliciously and without reasonable or probable cause, alternatively, as an abuse of his authority, filed an application to revoke bail granted to the plaintiff on 28 March 2008;
(f)On 11 December 2008, he unlawfully directed another police officer at St Kilda Police Station to arrest and imprison the plaintiff;
(g)On 12 December 2008, he improperly applied to revoke the plaintiff’s bail, which application was dismissed;
(h)On 12 December 2008, he maliciously prosecuted the plaintiff for further offences, including obtaining financial advantage by deception, making a false document and obstructing police (“the further charges”) which charges were subsequently withdrawn or dismissed;
(i)Over the period from March 2008 to December 2009, he improperly used his position to threaten and intimidate the plaintiff by targeting and scapegoating him and interfering with his liberty.[1]
[1]These allegations are contained in the Proposed Further Amended Statement of Claim, for the filing of which leave has not been granted; however, for the purposes of this ruling, I shall presume these allegations are extant.
2 The plaintiff alleges the State is liable pursuant to the provisions of s23 of the Crown Proceedings Act 1958.
3 By application made 14 February 2013, the plaintiff sought leave to amend his Statement of Claim by, inter alia, adding the following proposed paragraph 22:
“Further and in the alternative, police officers employed by the second defendant and working in a supervisory role in respect to (sic) the first defendant either operationally or within police prosecutions units, negligently sanctioned or authorised or failed to report or intervene in the conduct, charges and applications referred to in paragraphs 6, 10, 15 and 17 above, thereby enabling the first defendant to engage in that conduct, file each of the said charges and seek the said revocations of bail:
(a)without considering whether there was evidence to support the applications and/or charges;
(b)when the first defendant’s lack of objectivity in relation to the plaintiff was obvious or should have been obvious to his then superiors or supervisory officers;
(c)when the first defendant’s targeting and pursuit of the plaintiff was obvious, or should have been obvious to his then superiors or supervisory officers.
Particulars
The police officers employed by the second defendant and acting in a supervisory capacity or with power or capability to influence the conduct of the first defendant included:
(i)Detective Sergeant Anje Saravanos of Knox Police Staion;
(ii)police officers who authorised the police brief and charges;
(iii)police prosecutors employed by the second defendant who (sic) acting in respect of the said charges and revocation of bail matters;
(iv)the senior supervising sergeant at Knox CIU;
(v)the regional inspector referrable to Knox CIU;
(vi)the officer in charge of Victoria Police Ethical Standards Division.”
4 This proposed amendment was opposed by the first and second defendants. After hearing part of the submissions in relation to that application to amend, it was adjourned upon application by Counsel for the plaintiff to pursue production of documents held by the Chief Commissioner of Police (“the Chief Commissioner”) and the Independent Broad‑based Anti-corruption Commission (“IBAC”). Those documents were said to be related to files held by the Chief Commissioner or IBAC concerning complaints by members of the public against Detective Baker prior to April 2010.
5 Ms Dixon, for the plaintiff, said her client sought access to the subpoenaed documents for the following purposes:
(a) that they were relevant to the application to amend the Statement of Claim to plead negligence against the State; and
(b) to obtain evidence for use at trial to show Detective Baker had a ‘tendency’ to act in a manner alleged by the plaintiff; and
(c) generally as to the credit of Detective Baker.
6 The Chief Commissioner and IBAC have produced documents the subject of the subpoenas (“the subpoenaed documents”) but object to their release to the plaintiff. This ruling concerns that objection and whether the subpoenas ought be set aside.
7 No oral evidence was given in the course of the application. Affidavits of Paul McAlpine, sworn 23 July 2013 on behalf of the Chief Commissioner, and Tom James McGregor, sworn 23 July 2013 on behalf of IBAC, were filed in support.
8 The affidavit of Senior Sergeant McAlpine deposes:
·The subpoena issued to the Chief Commissioner sought documents from the Ethical Standards Department (“ESD”), now known as Professional Standards Command.
·The documents produced relate to complaints against Detective Baker under various categories (paragraph 3).
·The bases upon which objection is taken are: abuse of process, lack of legitimate forensic purpose and public interest immunity.
·A total of 18 files were located.
·Two of the files concern the plaintiff, and will be the subject of discovery in the course of the proceeding.
·The other files are not relevant and there is no legitimate forensic purpose in their production and/or are subject to public interest immunity as internal complaint files created as part of a confidential complaints and disciplinary process within the Victoria Police.
·Pursuant to the provisions of the Police Regulation Act 1985, police members are subject to investigation and prosecution, if appropriate, in relation to breaches of that Act.
·Investigation of complaints by the public is carried out by the ESD.
·Complaints made by members of the public are treated confidentially. An investigator is appointed to take charge of the investigation, depending upon the seriousness of the complaint. All complaints involve the creation of a file.
·The complainant is generally interviewed by the investigator, which may include the provision of private and personal information about the complainant or other witnesses.
·The statement made by a complainant or other witness is made on the basis that the contents will not be disclosed, save for the purposes of the investigation, or in respect of court or disciplinary proceedings.
·The police member who is the subject of the complaint is not provided with the complainant’s statement nor records of interview.
·In respect of this proceeding, Detective Baker has not seen the complaint documents.
·The assurance of confidentiality to complainants is said to be essential to enable information to be provided by complainants and witnesses. Disclosure, in particular in relation to civil proceedings, is said to have the capacity to hinder the investigation process.
·Complaints which demonstrate a prima facie case of misconduct are “canvassed” with the police member. If the member is suspected of having committed a criminal offence, an interview in accordance with s464A of the Crimes Act 1958 is usually conducted.
·In respect of some complaints, if the investigation does not reveal a reasonable belief by the investigator of a breach of discipline or criminal offence, it may result in counselling about the conduct of the member.
·A police member who believes the investigation process is confidential is said to be more likely to respond in a constructive manner to a complaint.
·Pursuant to the Discipline Investigation Manual, each complaint must be the subject of a determination, and a decision is made as to whether it is substantiated, unfounded or not substantiated.
·Upon completion of the investigation, the investigator’s report is provided to the investigator’s superior, but not to the member the subject of the complaint.
·The investigations are now subject to oversight and monitoring by IBAC.
·If the complaint is found to be unfounded or not substantiated, the member is considered exonerated.
·If the complaint is found substantiated but no breach of discipline is disclosed, the member may be admonished, or provided with counselling or some other form of management intervention.
·In most cases the complainant and the police member are notified of the outcome of the investigation by letter.
·If a complaint is substantiated and a breach of discipline found, steps may be taken under the Police Regulation Act, and a disciplinary hearing undertaken.
·The disclosure of ESD files will reveal the investigative methods in such investigations.
·In some investigations, the complaints file may reveal information of communications between IBAC and ESD which, it is said, may impede free and frank exchange between those bodies.
·Public disclosure of the investigation files may prejudice fearless and thorough investigation of complaints and affect open and frank exchanges between police officers in relation to such complaints.
·The complaints revealed in the subpoenaed documents:
§did not relate to the same period as the plaintiff’s claim;
§relate to allegations which were determined to be unfounded or not substantiated;
§contain personal information received in confidence from complainants;
§contain details of the deliberations and assessments made in the investigation process;
§will result in disclosure of details of the investigative process of ESD and IBAC;
§would inhibit the open exchange of information within the police force;
§will reduce the willingness of complainants to make complaints.
9 The affidavit of Mr Tom McGregor, filed on behalf of IBAC, deposes as to the following:
·IBAC objects to the production of subpoenaed documents on the grounds of abuse of process and lack of legitimate forensic purpose.
·IBAC has identified three files within the scope of a subpoena served upon it.
·The files relate to complaints created by the Office of Police Integrity (“OPI”), IBACs predecessor.
·Of complaints made to the OPI, those best addressed by alternative dispute resolution were directed to the EDS. Those complaints generally related to service delivery or poor performance.
·If the OPI determined a complaint required investigation, it was referred to Victoria Police. After investigation, the file was again reviewed by the OPI.
·The Police Integrity Act 2008 made it a criminal offence for OPI personnel to disclose information received in the course of the exercise of its function, except in restricted circumstances.
·Under s105 of the Police Integrity Act, a document became a “protected document” if it would be likely:
§to reveal the identity of a person who provided the Director with information relating to an investigation;
§to reveal the identity of a person who was the subject of an investigation;
§not to be otherwise in the public interest.
·The functions of IBAC include identifying, exposing and investigating police personnel misconduct so as to ensure the highest ethical and professional standard is maintained by police members.
·In the course of its duties, IBAC may investigate complaints against police members, or do so of its own motion.
·The Independent Broad‑based Anti-corruption Commission Act 2011 (“the IBAC Act”) made it a criminal offence for any IBAC officer to directly or indirectly disclose any information acquired in the performance of his or her duties.
·Section 47(2) of the IBAC Act provides that a “protected person” is not compellable to produce, or permit the inspection of, any document in his or her possession related to the exercise of powers by that person under the IBAC Act.
·Section 46 of the IBAC Act defines “protected document” to include a document which is likely to reveal the identity of an informer or a person who has provided information to IBAC relating to conduct of a police officer.
·Section 45(1) of the IBAC Act defines a “protected person” to include an IBAC officer.
Production of documents under subpoena prior to close of pleadings
10 The Chief Commissioner and IBAC argue that subpoenas ought not be used as a substitute for discovery and ought not be returned prior to the completion of the pleadings and discovery. In essence, the purpose of subpoenas is to produce documents to the Court to be used in the course of evidence at trial.[2]
[2]Commissioner for Railways v Small (1938) 38 SR (NSW) 564; Universal Press Pty Ltd v Provest Ltd & Anor (1989) 87 ALR 497
11 Order 42A of the County Court Civil Procedure Rules 2008 provides:
“42A.01 Application
(1)This Rule applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document for evidence before—
(a)the hearing of an interlocutory or other application in the proceeding; or
(b)the trial of the proceeding.”
(emphasis added)
12 Order 42A.07 permits the addressee of a subpoena to object to the production of documents and the procedure to be undertaken in relation thereto.
13 In Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd,[3] Gillard J considered the application of the rule in respect of subpoenas issued by the plaintiff to a number of non parties, the purpose for which was to obtain information to enable the plaintiff to properly plead its case. The relevant rule when his Honour determined that application was different from the rule above. It provided:
“Order 42.10(1)
This Rule applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document in writing for evidence before the trial of the proceeding.”
(emphasis added).
[3][1999] VSC 242
14 Order 42A is broader in its terms and envisages the production of documents before an interlocutory application. His Honour said:
“On a plain and literal interpretation of r42.10, aided by the definition and the forms, it is inescapable that the procedure under r42.10 is only available where the document is potentially required for evidence at the trial of a proceeding.”[4]
[4]at paragraph [71]
15 The issue was the subject of further consideration by Mukhtar AsJ in Burchell v Hill.[5] After referring to the authorities, his Honour, in contemplating the proper interpretation of the phrase “for evidence” as appears in order 42A, determined five propositions had application:
[5][2010] VSC 96
(i) The expression “for evidence” contemplates an intention that Order 42A should not be used as a substitute for non-party discovery. It contemplates the potential use of documents for trial;
(ii) The relevant documents produced should be potentially required for evidence, either in chief or by cross-examination. Even if the document could be said to improve a pleading, it still could potentially be capable for use in evidence as well;
(iii) The dominant test is relevance; that is, whether there is a legitimate forensic purpose in seeking the document. Once a legitimate forensic purpose is established then it is reasonable to suppose the document may well be used in evidence;
(iv) The documents must be identified with sufficient particularity;
(v) Much will depend upon the timing. At an early stage, a court might be more inclined to direct a party to obtain documents by prehearing discovery (Order 32). However, closer to a trial, a court might be more supportive of production of documents by subpoena.
16 His Honour went on to say:
“… A useful test and one which I shall apply here is to ask whether the subpoena would have been objectionable if it was made returnable at trial. Ordinarily, and at least in my experience, a trial Judge would wish to be satisfied that the documents were sought for a legitimate forensic purpose and potentially for the purposes of evidence at trial. This is why, I think, the question of relevance and specificity truly does inform the analysis over this rule.”[6]
[6]at paragraph [20]
17 The issue received consideration by Ferguson J in Oswal v Carson.[7] The subpoenas were upheld, although there was no suggestion that the documents were sought to assist in the formation of a pleading. Nonetheless her Honour said that if documents were obtained from a non party which might be used in evidence, it might prompt the provision of further particulars of a party’s pleading.
[7][2013] VSC 355
18 In Kennedy, counsel for the plaintiff conceded that the purpose of the issue of the subpoena was solely to enable the proper formation of a pleading, in circumstances where the plaintiff faced the prospect of a strike-out application.
19 I accept the submission of Ms Dixon for the plaintiff in this proceeding that the purpose of the issue of the subpoenas, while to some extent clearly to enable it to properly formulate and detail the proposed paragraph 22 in the Amended Statement of Claim, that a significant purpose is to identify, at an early time, complaints made against Detective Baker which may well be relevant, particularly in cross-examination against him “for evidence” at trial. One could well imagine that had he been the subject of similar complaints by the persons in the past, such matters could be used to significant effect in cross- examination.
20 With respect, I agree with the interpretation of Mukhtar AsJ in Burchell, in particular where his Honour considered relevance and legitimate forensic purpose as being the touchstone in determining whether documents met the “for evidence” rule. As his Honour said, once a legitimate forensic purpose could be ascertained, it would be reasonable to suppose the documents may well be used in evidence.
21 Finally, as was pointed out by Ms Dixon for the plaintiff, it would be a disappointing waste of the Court’s resources for this application to be dismissed only for an application to be made under Order 32.07 (discovery from a non party) and for the same issues to be again argued. Such a course would fly in the face of the overarching obligations to minimise delay, reduce costs and facilitate the efficient and timely resolution of issues in dispute, as prescribed by the provisions of the Civil Procedure Act 2010.
22 The objections by the Chief Commissioner and IBAC that the production of documents under the subpoenas is an abuse of process is dismissed.
Relevance – legitimate forensic purpose
23 Each of the defendants objects to the production of the documents on the basis that the material contained in the files is not relevant, as there is no legitimate forensic purpose in the material contained in the files. In my view, there are three bases upon which the material could be relevant:
(a) The material contained in the files could be relevant to the credit of Detective Baker (“credit”);
(b) The material could show a tendency to act in the manner alleged in the plaintiff’s Statement of Claim by reference to other complaints (“tendency”);
(c) On the presumption that leave is granted to amend the plaintiff’s Statement of Claim to include proposed paragraph 22, there was material in the files which could show there was a basis upon which Detective Baker’s supervising police officers ought to have known, and thus taken steps to intervene and sanction Detective Baker which would have prevented or at least reduced the likelihood of him behaving towards the plaintiff as alleged (“supervision”).
24 In Messade v Baires Contracting Pty Ltd,[8] J Forrest J confirmed principles relevant to determining whether a party is required to produce documents under subpoena:
[8][2011] VSC 56
“(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(c) the applicant for the witness summons must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents sought under the subpoena ‘will materially assist the defence’;
(d) a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted;
(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
…
(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.”[9]
[9]at paragraph [6], restating the principles established in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3 at paragraph [28]
25 Recently, the Court of Appeal in Woolworths Ltd v Svajcer[10] confirmed those principles, although noted in many cases it would be appropriate for a judge to inspect the subpoenaed documents to determine whether there was any basis upon which it could be said the contents supported a legitimate forensic purpose.[11]
[10][2013] VSCA 270
[11]at paragraph [42]-[44]
26 In relation to material contained in the complaint files which is said to show tendency, such material is inadmissible, unless the party seeking to adduce the evidence at trial has given reasonable notice in writing, and the Court thinks that the evidence will have significant probative value.[12] The phrase “significant probative value” has been the subject of much judicial interpretation. In RHB v R,[13] Nettle JA described tendency evidence in the following terms:
“… evidence which establishes that the appellant had a tendency to commit a particular kind of act or to commit a particular kind of act or to commit an act in a particular way, and the question is whether the degree of peculiarity (for want of a better term), either in the acts themselves, or in the circumstances in which they were committed or in nature or identity of the persons against whom they were committed or by reason of a combination of those and possibly other considerations, are such that the [material] has significant probative value. The two are not the same, albeit that in some cases there may be a large degree of overlap. …. The test for the admissibility of tendency evidence is one of fact and degree to be assessed in light of the facts and circumstances of the particular case.”[14]
[12]Section 97(1)
[13][2011] VSCA 295
[14](ibid) at paragraph [17]-[18]
27 Although those comments were made in the context of prior sexual offending, they have general application. For the admission of evidence under the tendency rule, it is not essential for it to reveal “striking similarities” or “unusual features”, but rather each case requires the assessment of the particular “peculiarity”.[15]
[15]RHB at paragraphs [17]–[18]
28 In Middendorp v R,[16] in the context of prior violent conduct, it was said that the circumstances of that prior conduct, in order to satisfy the tendency rule, could be “substantially and relevantly similar”.[17]
[16][2012] VSCA 47
[17](ibid) at paragraphs [20]–[21]
29 In R v Zhang,[18] the role of the trial judge in assessing tendency or coincidence evidence was said to be:
“The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ … in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted.”[19]
[18](2005) 227 ALR 311
[19](ibid) at paragraph [139]
30 I bear these principles in mind in considering the material contained in the complaints files and as to whether it shows any tendency on the part of Detective Baker.
31 The Chief Commissioner and IBAC made the following submissions:
(a) The Court must be satisfied that the documents are relevant to an issue, in that the material contained in the documents makes it likely it will materially assist the party;[20]
[20]Shaw v Yarranova Pty Ltd & Anor [2011] VSCA 55 at paragraph [26]
(b) In civil proceedings, a court should be cautious in permitting the use of a subpoena to obtain documents where the sole purpose is to impeach the credit of a witness;[21]
[21]Fried v National Bank Ltd [2000] FCA 910 at paragraphs [24] and [29]. See further Comcare v Maganga [2008] FCA 285 at paragraphs [31] and [32] where Bennett J said that, depending upon the circumstances, documents used solely to impeach the credit of a witness may serve a legitimate forensic purpose
(c) There is nothing contained in the subpoenaed documents to suggest it is “on the cards” that the material would assist the plaintiff in his case;
(d) Tendency evidence is not readily admissible to show the person has a tendency to act in a particular way; the requirements of s97 of the Evidence Act 2008 must be satisfied;
(e) Credibility evidence in respect of a witness is generally inadmissible, unless it could substantially affect the credit of that witness;[22]
(f) Save in respect of some minor procedural infractions for which counselling was ordered, practically all of the complaints contained in the files are unproven allegations which were found by the respective investigators to be not substantiated. The mere fact that an allegation is made or that a person has been charged with an offence is not capable of bearing upon the credit of a witness.[23]
[22]Evidence Act 2008; s102, s103
[23]R v Roberts (2004) 9 VR 295 at paragraph [77]. See further R v Mokbel (Ruling No 1) [2005] VSC 410 at paragraph [88]. See however, Murphy & Ors v The Commissioner of Police for The Metropolis [2012] EWHC 4123 (QB) at paragraphs [32]-[37]
32 On behalf of the plaintiff, Ms Dixon made the following submissions:
(a) It is appropriate, in particular considering relevance as to tendency or supervision, that the complaints be considered not individually, but as a course of conduct which, taken together over time, would be relevant;
(b) Even although most of the complaints were found to be not substantiated, the investigation process undertaken either by the police or IBAC may not be conclusive as to whether Detective Baker behaved inappropriately but may provide a “line of enquiry” to enable the plaintiff to follow up the allegations;[24]
[24]See Australian Competition and Consumer Commission v Pratt [2008] FCA 1373 at paragraph [29]
(c) The investigation and determination by a police or IBAC investigator is no more than a subjective assessment by an individual not bound by the rules of evidence as a court might be, and where the standard of proof may be different;
(d) It is not necessary to show that documents contained in the complaint files are admissible themselves, but rather that the information contained may assist a party by leading to a train of enquiry;[25]
[25]R v Young [1999] NSWCCA 166 at paragraph [81]
(e) When considering whether a document is relevant, the test as to relevance is not high. Although legitimate forensic purpose must be shown, a party is entitled to inspect documents not only to see if they contain relevant facts, but also if they contain information which may be proved otherwise than through that document;[26]
[26]Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Ltd [2002] VSC 270 at paragraph [7]
(f) A “generous approach” ought be taken;[27]
(g) Those parts of the complaint files which are not relevant can be appropriately restricted or redacted.[28]
[27]O’Brien v Chief Constable of South Wales Police [2005] UKHL 26
[28]Maronas Holdings Limited & Ors v Nippon Credit Australia Limited & Ors [2000] NSWSC 138 at paragraphs [24] and [29]
33 For the purposes of determining whether the complaint files are relevant, I have inspected the files of both the Chief Commissioner and IBAC. The plaintiff accepts that, to be relevant, the classes of complaint are limited to:
(a) Complaints relating to conduct which occurred before December 2008,[29] being the last date upon which the plaintiff makes allegations against Detective Baker, save that subsequent complaints may possibly be relevant as to tendency or credit;
[29]The proposed Further Amended Statement of Claim makes reference to conduct of Detective Baker up to December 2009 (paragraph 8(a) and (b)) and April 2010 (paragraph 8(c)), but these relate to the dates upon which the various charges were dismissed, discontinued or withdrawn in the Magistrates’ Court. In my view, the appropriate date to consider is December 2008.
(b) Conduct which is the same or similar in nature to the conduct as pleaded in the plaintiff’s Statement of Claim;
(c) Complaints other than those where Detective Baker has been completely exonerated, or the complaint is completely unfounded.
34 The complaints, with the conclusions as to relevance, are as follows:
Complaints to Chief Commissioner
Complaint No Complainant Result of Investigation My Conclusions 1 “W” Not substantiated Not relevant as to supervision as complaints relate to a period in 2011. Not relevant as to credit. Not relevant as to tendency as not similar conduct. 2 The plaintiff - These documents will be provided in the course of discovery. 3 “R” Not substantiated Not relevant as to supervision as complaints relate to period after December 2009. Not relevant as to tendency as not similar. Not relevant as to credit. 4 “S” Not substantiated Not relevant as to tendency nor supervision as complaint not similar. Not relevant as to credit. 5 “A” Not substantiated save as to failing to comply with OSTT training Not relevant as to supervision. Not relevant as to tendency nor credit. Detective Baker counselled regarding OSTT training.
6 “A” Substantiated. Counselling ordered Not relevant as to credit, tendency nor supervision. 7 “W” Not substantiated, although counselling given. Not relevant as to credit, tendency nor supervision. 8 “C” Counselling as to certain aspects of conduct. Not relevant as to credit, tendency, nor supervision. 9 “L” Dismissed (not proven). Not relevant as to credit, tendency nor supervision. 10 “W” Not substantiated. Not relevant as to credit, tendency nor supervision. 11 “S” Not substantiated. Not relevant as to credit, tendency nor supervision. 12 “C” Not substantiated. Not relevant as to credit, tendency nor supervision. 13 “B” Not substantiated. Not relevant as to credit, tendency nor supervision. 14 “O” Resolved through Public Incident Resolution process. Not relevant as to credit, tendency nor supervision. 15 “M” Initially complaints of assault and attempting to pervert the course of justice found substantiated upon initial investigation. Detective Baker acquitted by a County Court jury on those charges. Not relevant as to credit, tendency nor supervision. 16 “H” Some allegations found to be not substantiated, some unfounded. Not relevant as to credit, tendency nor supervision. 17 “A” Resolved through Public Incident Resolution process. Not relevant as to credit, tendency nor supervision.
35 I further inspected the IBAC files, and make the following assessment.
Complaints to IBAC
Complaint No Complainant Result of Investigation My Conclusions 1 The plaintiff - The file contains the complaints of the plaintiff relevant to the proceeding. 2 “S” (same complainant as per Chief Commission’s complaint no 4 Not substantiated. Not relevant as to tendency nor supervision as complaint entirely different. Not relevant as to credit. 3 “A” (same complainant as per Chief Commissioner’s complaint no 5 Not substantiated save as to failing to comply with OSTT training. Not relevant as to supervision. Not relevant as to tendency nor credit. Detective Baker counselled regarding OSTT training.
Summary and conclusions
36 Accepting that the subpoenas should not be set aside on the ground that their issue was an abuse of process, or that the complaint files ought to have been the subject of non-party discovery, in my view, upon a consideration of the submissions of the parties, and a review of the various complaint files, the subpoenas should be set aside on the ground of lack of legitimate forensic purpose.
37 Even without inspecting the documents, the undertaking by the plaintiff is a “fishing expedition” in the hope that there will be something contained in the various complaint files which will assist his case on one or other of the grounds of credit, tendency or supervision. Counsel for the plaintiff, of course, was unable to identify any specific aspect of the complaint files which could be said to be relevant, as they had not been inspected.
38 Having inspected the files, I am confirmed in the view that the material contained is not relevant on any of the bases referred to. In essence, the complaints are, with a few exceptions, unsubstantiated allegations and complaints against Detective Baker. Some of the complaints cannot be relevant given their time. Even accepting that a generous interpretation ought to be taken when considering whether the complaint files could disclose matters of credit which could be put to Detective Baker in cross-examination, I am satisfied that there are no matters raised in the documents, even those where it might be said that a “line of enquiry” could be undertaken, which disclosed a relevant credit issue.
39 Further, bearing in mind the legal principles as to tendency evidence, I am satisfied there is nothing in the complaint files to indicate the course of conduct the subject of the complaints could be said to be of significant probative value in relation to the allegations made in the plaintiff’s Statement of Claim.
40 Further, although leave to amend the plaintiff’s Statement of Claim to include the proposed paragraph 22 has not yet been granted, on the presumption that leave was granted, there is nothing in the complaint material to indicate any of the plaintiff’s supervising officers ought to have taken steps as to intervene and sanction Detective Baker in the manner alleged.
41 Given my findings in relation to relevance, it is unnecessary for me to consider the issue of public interest immunity.
42 In all the circumstances, the claims by the Chief Commissioner and IBAC that the subpoenaed files not be produced to the plaintiff is upheld and the subpoenas will be set aside.
0
19
0