Midson v State of Victoria (Ruling)
[2021] VSC 120
•16 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2018 02070
| JOHN MIDSON and MAGDALENA MIDSON | First Plaintiff Second Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9–10 March 2021 |
DATE OF RULING: | 16 March 2021 |
CASE MAY BE CITED AS: | Midson v State of Victoria (Ruling) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 120 |
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EVIDENCE – Admissibility of evidence derived from a sample obtained in accordance with a testing direction given under Victoria Police Act 2013 (Vic), Pt 5 – Drug and Alcohol Testing – Admissibility of evidence of information given in response to a direction under s 171 – Victoria Police Act 2013 (Vic), ss 97, 171.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr TP Tobin SC with Mr PG Hamilton | Footner Wren Legal |
| For the Defendant | Mr SD Hay QC with Mr RI Gipp | Matthew Hocking, Victorian Government Solicitor |
HER HONOUR:
In this proceeding, John Midson and Magdalena Midson claim damages from the State of Victoria in respect of a number of torts that they allege were committed against them by Victoria Police officers. Under s 74 of the Victoria Police Act 2013 (Vic), the State of Victoria is liable for police torts. The police torts alleged by Mr and Ms Midson are:
(a) false imprisonment of Mr Midson on 7 September 2016, when he was arrested for possessing a drug of dependence;
(b) false imprisonment and battery of Mr Midson on 5 May 2017, when he was forcibly arrested for stalking and intimidating a witness, and then handcuffed following his arrest;
(c) trespass on 5 May 2017, when the Midsons’ home was searched by police and their mobile phones were seized;
(d) malicious prosecution in respect of criminal charges brought against Mr Midson on 5 May 2017 and against Ms Midson on 6 July 2017, which were withdrawn by the Office of Public Prosecutions in April 2018; and
(e) collateral abuse of process in respect of the criminal charges.
It is alleged that these torts were committed by police officers with Professional Standards Command, in particular Detective Sergeant Stuart Latimer, who arrested Mr Midson on both occasions and was the informant for the criminal charges.
The trial commenced before me on 9 March 2021. In the course of cross-examination of Mr Midson on the afternoon of 10 March 2021, I made two rulings on evidence for which I now give reasons.
Admissibility of drug test results
The first ruling concerned the admissibility of a certificate of analysis of a hair sample taken from Mr Midson on 7 September 2016 in accordance with a testing direction given under Pt 5 of the Police Act. The plaintiffs objected to the admissibility of the certificate, and of any other evidence derived from the sample. They contended that it was inadmissible by operation of s 97(1) of the Police Act.
Section 97 provides, relevantly:
Admissibility of test results in certain proceedings
(1) Evidence derived from a sample obtained in accordance with a testing direction is inadmissible in any proceeding in a court, tribunal or before a person or body authorised to hear and receive evidence.
(2) Subsection (1) does not apply—
…
(c)in a proceeding arising out of, or connected with—
(i)an inquiry or investigation of a police officer (other than a special constable) or a protective services officer under section 67, Division 6 of Part 4, Part 7, Part 9 or Part 10; or
(ii) an investigation of a special constable under section 195; or
(iii) a determination under the Public Administration Act 2004 or an industrial instrument applying to Victoria Police employees as to whether a Victoria Police employee has engaged in unsatisfactory performance, misconduct or serious misconduct; or
…
The State accepted that the certificate was evidence derived from a sample obtained in accordance with a testing direction, but submitted that s 97(1) does not apply in this proceeding because it is a proceeding arising out of or connected with an investigation of a police officer under Pt 7—Discipline.
The State submitted that the words ‘arising out of, or connected with’ are of wide inclusion. It argued that it was artificial to view the criminal aspect of the case divorced from the context of the disciplinary investigation of Mr Midson, when the criminal charges arose from the disciplinary investigation. An example relied on was that the disciplinary brief against Mr Midson included a statement made by the alleged victim of the criminal charge of intimidating a witness. The State also pointed out that the plaintiffs relied on the disciplinary charges as evidence of malice towards Mr Midson.
The plaintiffs submitted that the proceeding did not relate to an inquiry or investigation, and that their claims pleaded in their further amended statement of claim did not relate to the disciplinary process. Although the circumstances might include the fact that disciplinary action was being taken against Mr Midson, his claim was for false arrest and imprisonment. They further submitted that the exception in s 97(2) should be read strictly, to give full effect to the protection against self-condemnation given by s 97(1).
Consideration
I ruled that the certificate was admissible, because the proceeding arises out of, or is connected to, the disciplinary investigation of Mr Midson. As a result, the exception in s 97(2)(c)(i) applied, and displaced the exclusion in s 97(1).
Settled principles of statutory interpretation require consideration of the ordinary and grammatical meaning of the words of the statute, having regard to context and legislative purpose.[1] The introductory words of s 97(2)(c) — ‘in a proceeding arising out of, or connected to’ — are very broad indeed. Their ordinary and grammatical meaning encompasses a proceeding that originates, has its source in, or is related to, any of the matters set out in paragraphs (i) to (iii) of s 97(2)(c).
[1]See e.g. State of Victoria v Thompson (2019) 58 VR 583, [27]–[29].
I have considered the context in which the words appear, in s 97, in Pt 5—Drug and Alcohol Testing, and in the Police Act more broadly. The statutory purpose that appears from that context, and from the statement of compatibility and the second reading speech for the Police Act,[2] is to enable the Chief Commissioner to require members of Victoria Police to undergo drug and alcohol testing without unduly interfering with their right to privacy.[3] I do not consider it to be inconsistent with that purpose to give the words ‘arising out of, or connected to’ their ordinary meaning. Parliament contemplated, by enacting s 97(2), that there would be exceptions to the general rule that test results are not admissible in legal proceedings.
[2]Victoria, Parliamentary Debates, Legislative Assembly, 16 October 2013, 3605 (Mr Wells, Minister for Police and Emergency Services).
[3]Ibid, 3607, 3613.
The proceeding commenced by the plaintiffs in November 2018 clearly arose from a disciplinary investigation of Mr Midson under Pt 7 of the Police Act. From the time the proceeding was commenced until the second day of the trial, the statement of claim included allegations that disciplinary charges brought against Mr Midson in January 2017 constituted malicious prosecution.[4] From July 2020, they were also relied on for a claim of collateral abuse of process.[5] However, on the morning of 10 March 2021, I gave the plaintiffs leave to file and serve a further amended statement of claim omitting the paragraph that had set out the disciplinary charges, and any reliance on those charges in relation to the claims of malicious prosecution and collateral abuse of process. They had opened their case the previous day on the basis of the case pleaded in the further amended statement of claim.
[4]Statement of claim filed 2 November 2018, [15], [18]; Amended statement of claim filed 14 July 2020, [15], [18].
[5]Amended statement of claim filed 14 July 2020, [15], [30A].
Although there is no longer any claim that the disciplinary charges were themselves tortious, there is no escaping the fact that the remaining claims arise out of or are connected with the disciplinary investigation of Mr Midson by Professional Standards Command that (on the evidence so far) commenced in about September 2016. It is sufficient to note the following:
(a) The drug offences for which Mr Midson was arrested on 7 September 2016 were never the subject of criminal charges, but were the subject of a disciplinary investigation that resulted in disciplinary charges against him.
(b) The text messages that gave rise to the criminal charges related to the disciplinary investigation of Mr Midson, who was by then facing disciplinary charges. Mr Midson said in his evidence that, in early November 2016, a few months before he was charged, the alleged victim had sent him a message to resign or be charged and sacked.[6]
(c) The plaintiffs rely on the furtherance of the disciplinary charges as evidence that the criminal charges were brought with malice.[7]
[6]Transcript, 10 March 2021, 129:21–31. See also Transcript, 11 March 2021, 237:27–238:9.
[7]Updated further and better particulars of statement of claim filed 28 May 2020, [B.6]; Transcript, 9 March 2021, 71:20–72:11.
More broadly, I accepted the State’s submission that it would be wholly artificial to divorce the criminal charges that are the subject of this proceeding from the context in which they were brought. The context was the disciplinary investigation of Mr Midson by Professional Standards Command, which gave rise to disciplinary charges that had not been inquired into or determined before Mr Midson resigned in February 2018. Indeed, it would not have been possible to understand a good deal of Mr Midson’s evidence without that context. For that reason also, I concluded that the proceeding is connected to the disciplinary investigation.
Admissibility of answers given in response to s 171 direction
The second ruling concerned the admissibility of evidence of answers given by Mr Midson in response to a direction under s 171 of the Police Act. Section 171 provides:
Power to require answers etc.
(1) For the purposes of an investigation into a complaint concerning a possible breach of discipline, the Chief Commissioner may direct any police officer or protective services officer to give any relevant information, produce any relevant document or answer any relevant question.
(2) A police officer or protective services officer who does not comply with a direction commits a breach of discipline and is liable to be dealt with as for a breach of discipline.
(3) Except in proceedings for perjury, for a breach of discipline or for failure to comply with a direction, or a review under Part 8, any information, document or answer given in response to a direction is not admissible in evidence before any court or person acting judicially.
Mr Midson was interviewed by Detective Sergeant Latimer on 24 November 2016, pursuant to s 171. Objection was taken to a question of Mr Midson during cross-examination, as to the answer he gave to a question asked during that interview, on the basis that it was not admissible under s 171(3) of the Police Act. The State accepted that s 171(3) precluded it from adducing direct evidence of Mr Midson’s answers — such as a recording of the interview, or a transcript of that recording — but submitted that it was permissible to seek that evidence indirectly from Mr Midson.
Consideration
I rejected the State’s submission that indirect evidence of answers given in response to a direction under s 171(1) was admissible.
While neither side identified any authority concerning s 171(3), its predecessor, s 86Q(3) of the Police Regulation Act 1958 (Vic), was the subject of judicial consideration. In R v Mokbel (No 2),[8] objection was taken to a subpoena for production of documents that included material obtained through the exercise of the coercive powers found in s 86Q. Gillard J ruled that the material had to be produced:[9]
In addition, there is an interview, pursuant to s.86Q of the Police Regulation Act 1958, involving Mr Firth. The investigation concerns possible breaches of discipline. By reason of s.86Q(3) any information provided during the course of the interview is not admissible in evidence before any court. However, for reasons I stated in the first ruling, that does not mean to say that what is included in there may not provide some basis for investigation by the lawyers representing Mr Mokbel and accordingly, in my view, that interview should be made available.
This ruling turned on the distinction between production of documents in answer to a subpoena and the admissibility of evidence at trial. It did not assist the State’s argument, given the clear recognition that information provided during the interview was not admissible in any proceeding.
[8][2005] VSC 502 (Mokbel No 2).
[9]Mokbel No 2, [37].
Evidence about answers given during a s 86Q interview was ruled inadmissible in Slaveski v State of Victoria.[10]
[10][2010] VSC 441, [701], fn 397.
It is common for a coercive investigatory power such as s 171(1) of the Police Act to be accompanied by a use immunity such as s 171(3). Restrictions on the use that may be made of information obtained coercively is one means of justifying a coercive power that limits the human right not to be compelled to testify against oneself or to confess guilt[11] and abrogates the common law privilege against self-incrimination.[12] Very significant problems can arise when information that is subject to a statutory use immunity is used in a criminal investigation, as illustrated by cases such as Lee v R[13] and Strickland v Commonwealth Director of Public Prosecutions.[14] These considerations tend against any blurring of the bright line against admissibility drawn in s 171(3) of the Police Act.
[11]Charter of Human Rights and Responsibilities Act 2006 (Vic), s 25(2)(k).
[12]See e.g. Independent Broad-based Anti-corruption Commission Act 2011 (Vic), s 144; and Victoria, Parliamentary Debates, Legislative Assembly, 19 April 2012, 1783 (Mr McIntosh, Minister responsible for the establishment of an anti-corruption commission), discussed in R v Independent Broad-based Anti-corruption Commission (2016) 256 CLR 459, [72] (Gageler J).
[13](2014) 253 CLR 455.
[14](2018) 266 CLR 325.
The clear policy of s 171(3) is that information obtained in response to a direction given under s 171(1) is not admissible in any proceeding, with some specific exceptions that do not apply here. The protection applies as much to indirect evidence of information obtained as it does to direct evidence. In this case, Mr Midson was compelled to provide information in response to a direction given under s 171(1). The information he provided is inadmissible in this proceeding, whether it is proved directly by a recording or transcript of the interview, or indirectly by asking him what answers he gave during the interview.
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