McCausland v State of NSW

[2010] NSWSC 1562

CITATION:	McCausland v State NSW [2010] NSWSC 1562
HEARING DATE(S):	6 October 2010
JUDGMENT DATE :	16 December 2010
JUDGMENT OF:	Latham J
DECISION:	(i) There be no disclosure, except for the purposes of properly conducting these proceedings, of those documents, on the basis that it would be injurious to the public interest. (ii) All copies of the documents be returned to the Crown Solicitor's Office at the end of these proceedings. (iii) The plaintiff's legal representatives and expert provide undertakings that they will only use, publish and/or copy the documents for the purpose of these proceedings, and (iv) The Court notes that the Commissioner intends, at the substantive hearing of these proceedings, to make any application that he considers necessary to protect the public interest. I further order that there should be no publication, except for the purposes of the conduct of these proceedings, of paragraphs 24 and 25 of these reasons.
CATCHWORDS:	PRACTICE AND PROCEDURE – non-publication orders – Evidence at 1995 (NSW) s130 – public interest immunity – police operating procedures – public interest in confidentiality is to be balanced against the public interest of open justice
LEGISLATION CITED:	The Evidence Act 1995
CATEGORY:	Procedural and other rulings
CASES CITED:	Sankey v Whitlam [1978] 142 CLR 1Young v Quin [1985] 4 FCR 483D v NSPC [1978] AC 171S v State of New South Wales (No 3) [2009] NSWCA 248Commissioner of Police New South Wales v Nationwide News Pty Limited [2007] 70 NSWLR 643John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324the Commissioner of Police New South Wales v Nationwide News Pty Limited [2007] NSWCA 366John Fairfax & Sons Limited v Police Tribunal of New South Wales [1986] 5 NSWLR 465
PARTIES:	Elisha Jessica McCausland - (Plaintiff) State of New South Wales - (Defendant)
FILE NUMBER(S):	SC 2009/297552
COUNSEL:	EG Romaniuk - (Plantiff) M Kumar - (NSW Commissioner of Police)
SOLICITORS:	Farrell Lusher Solicitors - (Plaintiff) Bartier Perry Solicitors - (Defendant) Crown Solicitor - (NSW Commissioner of Police)

JUDGMENT

NON-PUBLICATION ORDER (see para. 34 of judgment)

1 The plaintiff filed a subpoena for production on 30 July 2009, addressed to the Commissioner of the New South Wales Police Force, seeking production of various documents, including at paragraphs 1(v) and (w) of the subpoena:

“All standing operating procedures for pursuit vehicles at the date of the pursuit",

being 29 October 2003 and

“All New South Wales Police operational orders for vehicle pursuits as at the date of the pursuit.”

2 The proceedings arise out of the collision which occurred on 29 November 2003, as a result of which the plaintiff suffered severe personal injury. At the time she was thirteen years old and was driving her father's car. She was being pursued by two police vehicles driven by Detective Senior Constable Jones and Senior Constable Scott Haynes, when a collision occurred between the plaintiff's vehicle and a semitrailer on the Olympic Way near Cartwrights Hill at Wagga Wagga.

3 The plaintiff's claim, as set out in the initial statement of particulars dated 25 August 2010, is quantified at in excess of $1 million in respect of loss of earnings and future loss of income.

4 The defendant in the proceedings is the State of New South Wales, on the basis that it is vicariously liable for the negligence of the police who conducted the pursuit.

5 By amended notice of motion filed on 6 October 2010, the Commissioner has sought to claim public interest immunity over parts of the New South Wales Police Force Safe Driving Policy, which was first published on 1 December 1992 and revised on 1 July 2000, hereinafter referred to as "the policy", and over parts of other documents caught by the subpoena, which refer to aspects of the policy on the basis that those parts of the documents contain confidential police operating procedures and methods of operation at the time of urgent duty driving and police pursuits, the disclosure of which would be contrary to the public interest.

6 The plaintiff resists the application so far as the Commissioner be excused from producing parts of the documents, including the policy, but does not oppose the making of appropriate non-publication orders and/or undertakings.

7 Although the defendant initially provided full disclosure of the documents in response to the subpoena, it was without the consent of the Commissioner, who subsequently sought and obtained orders by notice of motion filed 12 July 2010 to uplift and retain the documents previously produced.

8 A notice of motion filed by the Commissioner on 11 August 2010 sought that there be no order for production of documents caught by paragraphs 1(v) and (w) of the subpoena, but a redacted copy of the policy was subsequently produced on 18 August 2010.

9 The other documents which have not been provided to the plaintiff and which it is claimed refer to aspects of the policy on the basis that those parts contain confidential police methodology, and over which the Commissioner claims public interest immunity, include:

(i) Standard operating procedures 29.2 Pursuits-Vehicle dated 9 April 1998;
(ii) Standard operating procedures 44.2 Pursuits-Vehicle undated;
(iii) New South Wales Police Service Duty Officer's Manual published June 2001 and reviewed May 2002; and
(iv) New South Wales Police Service Policing Issues and Practice Journal article entitled "Safe Driving Policy Roles and Responsibilities" published in April 2002.

10 The Commissioner seeks non-publication orders and further protective orders in the event his primary application is unsuccessful.

11 In respect of the following additional documents, the Commissioner seeks a non-publication order and further protective orders:

(i) The transcript of an interview between Detective Leading Senior Constable Greg Balind and Malcolm Ferris on 29 October 2003;

(ii) The transcript of an interview between Detective Sergeant Matthew O'Donnell and Senior Constable Scott Haynes on 30 October 2003;

(iii) The Investigator's Report prepared by Detective Leading Senior Constable Greg Balind dated 21 June 2004;
(iv) The report by Detective Inspector Smith dated 17 May 2004;
(v) The Terms of Reference of the Critical Incident Investigation at Wagga Wagga and Chronology; and
(vi) The transcript of an interview on 11 November 2003 between Detective Inspector Godden, Detective Senior Constable Balind and Senior Constable Burness.

12 In support of the application, the Commissioner has filed affidavits of Deputy Commissioner Catherine Judith Byrne, both sworn on 14 September 2010, one which is confidential and the other open. In addition, the confidential exhibit CJB1 to Deputy Commissioner Byrne's confidential affidavit, and a folder of "Further subpoenaed documents subject to public interest claim", have been filed.

13 An affidavit of Mr Brett Davies dated 6 October 2010 has also been filed, which deals with typographical errors in the affidavits of Deputy Commissioner Byrne.

14 In addition, a further open affidavit of Catherine Judith Byrne dated 9 December 2010 was provided to the Court in the course of further submissions, and a further confidential affidavit of Catherine Judith Byrne dated 9 December 2010 has been received in respect of certain matters, leading to the inadvertent disclosure of parts of the Safe Driving Policy, in circumstances that I do not need to detail for the purposes of these reasons.

15 The plaintiff has filed an affidavit of Peter Wayne Smith sworn on 5 October 2010, which asserts that the plaintiff needs a proper authenticated copy of the policy in order to be able to brief an expert on police procedures and driving. It is plain that, without the documentation, the expert will be relying on guesswork, which could lead to their opinion being challenged as to the authenticity of the material relied upon, and, consequently, the weight or admissibility of the expert's opinion could also be open to challenge.

16 Section 130(1) of the Evidence Act provides that:

“If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the Court may direct that the information or document not be adduced as evidence.”

17 Although this section deals with the admission into evidence of information or a document, it is consistent with the common law test for production of a document as set out by Gibbs ACJ in Sankey v Whitlam [1978] 142 CLR 1 at 38-39:

“The general rule is that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the public interest has two interests which may conflict. These were described by Lord Reid in Conway v Rimmer ...as follows:

'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done'...

The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer ...'the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it'. In such cases once the court has decided that 'to order production of the document in evidence would put the interest of the state in jeopardy', it must decline to order production.”

18 The Act does not define "public interest" but some of the factors relevant to an assessment of it are set out in section 130(5) of the Evidence Act:

“Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(a) the importance of the information or the document in the proceeding;
(b) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor;
(c) the nature of the offence, cause of action or defence to which the information of document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant - whether the direction is to be made subject to the condition that the prosecution be stayed.”

19 Effective policing gives rise to an accepted category of public interest immunity. In Young v Quin [1985] 4 FCR 483, Beaumont J cited, with approval, D v NSPC [1978] AC 171:

“Then the law proceeds to recognise that the public interest in the administration of justice is one facet only of a larger public interest...Another facet is effective policing.”

20 Further, the protection of confidentiality of the police methodology has been the subject of public interest immunity in Young v Quin and also in S v State of New South Wales (No 3) [2009] NSWCA 248 and Commissioner of Police New South Wales v Nationwide News Pty Limited [2007] 70 NSWLR 643.

21 However, establishing a legitimate claim for public interest immunity is not determinative. As set out above, the public interest in confidentiality is to be balanced against the public interest of justice being done, on the basis of all the evidence.

22 In undertaking this balancing test, the Court is, therefore, required to balance the public interest in the plaintiff having access to the documentation for use in her claim, having regard to section 130(5)(a) and (c) of the Evidence Act against the public interest in non-disclosure to ensure law enforcement and the preservation of effective policing.

23 The Court is also to have regard to section 130(5)(d) and (e), which are dealt with in Deputy Commissioner Byrne's confidential affidavit. In particular, I refer to section 130(5)(e); namely, whether the substance of the information or document has already been published. The content of the confidential affidavit of Catherine Byrne of 9 December 2010 is relevant in respect of that factor and has particularly informed my decision in the instant case.

24 [Not Published]

25 [Not Published]

26 Although I accept that some of the redacted points do not appear to be directly relevant, having regard to the statement of claim as currently drafted, the possibility remains that they may become directly relevant as the litigation proceeds, particularly after experts have been briefed. In any event, as set out above, they are relevant to the extent that it is important for the whole of the policy and documents to be produced, insofar as, if any part is redacted, it will deprive those unredacted parts of their proper context.

27 Bearing in mind the order I propose to make limiting publication of the material, I have concluded that the public interest in allowing the plaintiff access to the documents is not outweighed by the public interest in preserving the confidentiality of the material. Accordingly, the unredacted policy and documents referred to at paragraph 9 of this judgment should be produced to the plaintiff.

28 In considering whether the alternative orders sought by the Commissioner are appropriate, I have had regard to the principles which have been stated in John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324 and the decision of the Commissioner of Police New South Wales v Nationwide News Pty Limited [2007] NSWCA 366, which indicate that a test of necessity applies. In John Fairfax, Spigelman CJ cited, with approval, at paragraph 40, McHugh JA in John Fairfax & Sons Limited v Police Tribunal of New South Wales [1986] 5 NSWLR 465 at 476-477:

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more that is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more than is 'necessary to enable it to act effectively within' its jurisdiction.”

29 In conducting the balancing exercise to determine whether, in all the circumstances of the case, the public interest in protecting the confidentiality of information outweighs the countervailing public interest in the public availability of that information, I am satisfied that the material sought to be the subject of a public interest immunity claim, namely the policy and documents that I have referred to above, should be restricted from publication other than to the plaintiff's legal representatives and any expert the plaintiff might brief, in order to ensure that the public interest is maintained.

30 I am also satisfied that the additional documents that were referred to in these reasons, being the six documents compendiously described as transcripts of interviews, investigative reports and terms of reference, sought to be the subject of non-publication orders, should be restricted from publication to ensure that public interest is maintained.

31 In considering the application for non-publication, I have had regard to the very strong countervailing interest which applies in favour of the publication of proceedings, and in particular publication of the Court's reasons for its judgment.

32 Accordingly I make the following orders:

(1) In respect of:
(a) the New South Wales Police Force Safe Driving Policy, first published in 1992 and revised in 2000,

(b) the standard operating procedures 29.2 Pursuits-Vehicle dated 9 April 1998,

(c) the standard operating procedures 44.2 Pursuits-Vehicle undated,

(d) the New South Wales Police Service Duty Officer's Manual published June 2001 and reviewed May 2002,

(e) the New South Wales Police Service Policing Issues and Practice Journal article entitled "Safe Driving Policy Roles and Responsibilities" published in April 2002,

(f) the transcript of the interview between Detective Leading Senior Constable Greg Balind and Malcolm Ferris on 29 October 2003,

(g) the transcript of an interview between Detective Sergeant Matthew O'Donnell and Senior Constable Scott Haynes on 30 October 2003,

(h) the Investigator's Report prepared by Detective Leading Senior Constable Greg Balind dated 21 June 2004,

(i) the report by Detective Inspector Smith dated 17 May 2004,

(j) the Terms of Reference of Critical Incident Investigation at Wagga Wagga and Chronology, and

(k) the transcript of an interview on 11 November 2003 between Detective Inspector Godden, Detective Senior Constable Balind and Senior Constable Burness,

33 I order that:

(i) There be no disclosure, except for the purposes of properly conducting these proceedings, of those documents, on the basis that it would be injurious to the public interest.

(ii) All copies of the documents be returned to the Crown Solicitor's Office at the end of these proceedings.

(iii) The plaintiff's legal representatives and expert provide undertakings that they will only use, publish and/or copy the documents for the purpose of these proceedings, and

(iv) The Court notes that the Commissioner intends, at the substantive hearing of these proceedings, to make any application that he considers necessary to protect the public interest.

34 I further order that there should be no publication, except for the purposes of the conduct of these proceedings, of paragraphs 24 and 25 of these reasons.

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