59 VR 422McLEAN v RACING VICTORIA LTD and Another Supreme Court of VictoriaRichards J 25 September, 18 October 2019[2019] VSC 690Police — Search warrants — Warrant under Crimes Act 1958 — Syringes seized by police from licensed racehorse trainer — Information derived from things seized disclosed by police to Racing Victoria — Whether police owed duty of confidentiality regarding things seized — Whether limitation on use by police of information derived from seized things — Privacy and Data Protection Act 2014 (Vic) — Crimes Act 1958 (Vic), s 465.Police — Common law powers and duties — Confidential information obtained in criminal investigations.Human Rights — Privacy — Search warrant — Whether disclosure of information derived from seized thing lawful — Privacy and Data Protection Act 2014 (Vic), Information Privacy Principle 2.1(e) — Charter of Human Rights and Responsibilities (Vic), ss 13(a), 32.Words and Phrases — ‘Unlawful activity’, ‘dealt with according to law’.
Police executed a search warrant issued under s 465 of the Crimes Act 1958 (Vic) (CrimesAct) at the home of the plaintiff, a horse trainer licensed under the Racing Act 1958 (Vic) (Racing Act). Syringes were among the items seized.
Authorised forensic analysis was undertaken of two of the syringes. Both contained recombinant human erythropoietin (EPO) and one also contained equine deoxyribonucleic acid (DNA) matching that of a horse trained by the plaintiff. EPO was a scheduled substance under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), possession of which (without a prescription) was an offence. It was also a prohibited substance under the Rules of Racing.
In due course, police wrote to the first defendant, Racing Victoria, enclosing information about the syringes and the test results, noting that offences may have been committed against the Rules of Racing. The letter stated that the disclosure of information was made pursuant to the Privacy and Data Protections Act 2014 (Vic) (Privacy Act), Information Privacy Principle (IPP) 2.1. IPP 2.1(e) provided:
An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless—
(e)
the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities; or
Section 13 of the Charter of Human Rights and Responsibilities (Charter) provided that a person had the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.
On the basis of the information provided by police, Racing Victoria’s stewards formed the view that there were reasonable grounds to suspect that the plaintiff had committed breaches of the Rules of Racing. The stewards asked the plaintiff to show cause why…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading McLean v Racing Victoria
Sign in free to access the full text
Details
AGLC
McLean v Racing Victoria [2019] VSC 690
Case
[2019] VSC 690
Decision Date
CaseChat Overview and Summary
In McLean v Racing Victoria Ltd, McLean, a licensed racehorse trainer, brought an application for judicial review against Victoria Police and Racing Victoria, the regulatory body for horse racing in Victoria. The application followed a search of McLean's home by Victoria Police, which resulted in the seizure of six syringes. Analysis of two of the syringes revealed that both contained recombinant human erythropoietin (EPO), and one also contained equine DNA matching that of a horse trained by McLean. Possession of EPO (without a prescription) was an offence under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), and it was also a prohibited substance under the Rules of Racing. Victoria Police wrote to Racing Victoria, enclosing information about the syringes and the test results, noting that offences may have been committed against the Rules of Racing. Racing Victoria's stewards formed the view that there were reasonable grounds to suspect that McLean had committed breaches of the Rules of Racing. The stewards asked McLean to show cause why his licence should not be suspended pending the hearing and determination of those charges. McLean brought an application for judicial review seeking orders restraining Racing Victoria from acting on the information received from the police. The Supreme Court dismissed the application. The Court found that the disclosure of the information by Victoria Police to Racing Victoria was lawful under the Privacy and Data Protection Act 2014 (Vic). The disclosure was authorised by Information Privacy Principle 2.1(e), which permitted disclosure by the police of McLean's personal information for the secondary purpose of informing a relevant regulator of evidence of concern about a licensed person where the police had reason to suspect that unlawful activity had been engaged in. 'Unlawful activity' under Information Privacy Principle 2.1(e) was not confined to criminal activity. Even if it were confined, police had reasons to suspect criminal activity in this case. The Court therefore dismissed McLean's application for relief against Victoria Police and Racing Victoria.