Mullett v Nixon and ors (Ruling No.3)

[2016] VSC 281

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 01520

PAUL MULLETT	Plaintiff
v
CHRISTINE NIXON & ORS	Defendants

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	17, 18 May 2016
DATE OF RULING:	18 May 2016
CASE MAY BE CITED AS:	Mullett v Nixon & ors (Ruling No.3)
MEDIUM NEUTRAL CITATION:	[2016] VSC 281

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EVIDENCE – Proposed tender of documents – Limitation of use – Provisional tender of some documents – Evidence Act 2008 s 136.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Panna QC Mr R. Richter QC	Stephens Lawyers and Consultants
For the Defendant	Ms R. Orr QC Mr C. Caleo QC Mr L. Brown Mr S. Hay Mr D. McCredden	Victorian Government Solicitor’s Office

HIS HONOUR:

1. Shortly after 9:00am this morning, I was provided with a folder of over 100 media articles and transcripts that the plaintiff wishes to tender.  I indicated previously to Mr Panna, after reading a sample of those articles, that I was not prepared to admit the articles for all purposes, and that I proposed to limit the uses that may be made of the articles and/or transcripts.  Mr Panna identified two broad purposes that he contended were served by these documents.

1. All the articles and transcripts pressed are said to evidence in some way the plaintiff's reputation.  As I understand it, the defendants do not contend otherwise in the sense that they do not object to the evidence being admitted on that very limited basis.

1. Some of the articles are said also to evidence motive, apparently by providing examples of an increasingly acrimonious relationship between Chief Commissioner Nixon and Mr Mullett.  The plaintiff argues that this increasingly dysfunctional relationship provided a motive or explanation for the defendants either maliciously prosecuting the plaintiff, or dealing with him by acting invalidly, and in bad faith, in their capacity as public officials.

1. Insofar as all the articles and transcripts pressed are relevant to the issue of reputation, I admit them for that limited purpose pursuant to s 136 of the Evidence Act 2008 (‘the Act’).

1. I admit the following articles and transcripts as relevant also to the issue of motive as I have explained it. They are as follows (along with Court Book references):

p  6273:         The Herald Sun article, ‘Police Strike Looms’;

p  6278:         The Herald Sun article, ‘Games Stretch Police’;

p 6292:  The Herald Sun article, ‘Thin Blue Line in Sand’;

p 6293:  The Herald Sun article, ‘Our Thin Blue Line Gets Thinner’;

p 6294:  The Herald Sun article, ‘Cracks in the Thin Blue Line’;

p. 6296:         The Herald Sun article, ‘Give Us Our Money’;

p. 6297:         The Herald Sun article, ‘Smear Campaign Alleged’;

pp 6301 – 6302: The Age newspaper article, ‘More Firepower for Police’;

p 6305:  The Herald Sun article, ‘Alarm on Cop Hours’;

pp 1038-1039:          The Age newspaper article, ‘Police Association Faces Dirt Claims’;

pp 1040 – 1041:The Age newspaper article, ‘Mullett Lashes Political Nixon’;

p 5464:          The Australian newspaper article, ‘Nixon Accused of Undermining Police Union’;

pp 5237 – 5242 of Media Monitors transcript of Neil Mitchell interview of Paul Mullett; (commences p. 5237);

pp 5217-5218 and 5221–5223 of Media Monitors transcript of Jon Faine interview of Paul Mullett (commences p. 5218);  

p 3462           The Age newspaper article, ‘Mullett Suspended After Claims he interfered in Murder Investigation’;

p 3464           The Herald Sun newspaper article by Keith Moor, titled, ‘Showdown, Police in Crisis";

p 6323           The Australian newspaper article, "Mullett Set For Showdown’;

pp 6344-6345 The Herald Sun newspaper article, ‘It's War’;

p 5467           The Australian newspaper, ‘Top Cop Wants Union Overhaul’;

pp 5468 and 5469: The Herald Sun online article, ‘Cops Union Reforms Push by Christine Nixon’;

p 6360A        The Age article by Andrea Petrie, ‘Trio Will Be Charged: Police Chief’.

1. For the avoidance of doubt, I shall identify the articles which I consider do not go to motive and thus are admitted on a reputation only basis.  There is also a third category of documents that I shall come to shortly, which are transcripts of interviews of either Ms Nixon or Mr Walshe.

1. The articles which I consider, despite the plaintiff’s submissions, cannot be said to go towards establishing motive and thus are admitted on a ‘reputation only’ basis, are[1]:

   [1]I note that further media articles/transcript documents have been tendered by agreement, with use restricted to establishing reputation, see [2] and [4] above.

p 6267           The Age, ‘Blockade Threat on Policing Concerns’;

p 6279            The Age, ‘Threat to Games Over Super Plan Merger’;

p 6280           The Herald Sun, ‘Pay Up, Police Demand’;

p 6295           The Herald Sun, ‘Surgery Attack Brings Plea for More Police: Make us safe’;

p 6299           The Herald Sun, ‘Sack Nixon, Cops Demand’;

p 6303           The Herald Sun, ‘Mullett Pulls in a Big Fish’;

p 6304           ‘Bracks in Secret Deal With Police’;

p 3461           The Australian, ‘Mullett Cut From Force, Could Face Charges’;

p 3463           The Age, ‘Mullett Placed on Suspension by Nixon’;

pp 6326–6327 The Australian, ‘Charges Urged Over Plot to Unseat Top Cop’;

p 6328           The Australian, ‘No Need for Royal Commission: Nixon’;

p 6331           The Herald Sun, ‘The Case FOR and AGAINST’.

1. The  documents in the third category I adverted to, are:

p 5214Extract of transcript of radio interview of Christine Nixon by Peter Thompson, ABC Radio National, Big Ideas, Wisdom Interviews

pp 5244–5246, 5249–5259 and 5264 of Media Monitors Transcript of Interview between Christine Nixon, Chief Commissioner, Victoria Police and Neil Mitchell, 3AW (commencing p. 5244);

pp 5265–5277, 5279 and 5281 of Media Monitors Transcript of ABC 774 Melbourne radio interview between Jon Faine and Christine Nixon, Chief Commissioner, Victoria Police titled ‘Discussion of the reported breakdown in relations between The Police Association of Victoria and Victoria Police’ (commencing p. 5265);

pp 5284–5291, Transcript of Sky News press conference – Christine Nixon, along with video recording of that press conference;

pp 5292–5302, 5305–5309, 5314–5317 of Media Monitors Transcript of Press Conference at Flinders Street Police Centre by Christine Nixon, Chief Commissioner, Victoria Police and Simon Overland, Victoria Police (commencing p. 5292);

pp  5318–5319, 5323 and 5325–5329 of Media Monitors Transcript of radio interview of Christine Nixon & Simon Overland by Neil Mitchell on 3AW (commencing p  5318);

pp 5349–5358, ABC Online transcript of ABC702 Sydney radio interview of Christine Nixon by Monica Attard, titled ‘from crime to immigration: Vic Police Commissioner Christine Nixon, and Christine Rau, sister of Cornelia Rau’;

pp 5425–5428 and 5432–5433 of Media Monitors transcript of radio interview of Christine Nixon by Neil Mitchell on 3AW (commencing p  5425);

pp 5416-5418 and 5420–5423 of Transcript of Kieran Walshe press conference (commencing p 5416).

1. These are transcripts of one or other of the defendants in media conferences.  I am not prepared at this stage either to admit them absolutely or alternatively confine their use as, in my view, it is premature to do so.  I therefore admit these transcripts on a provisional basis, and I will consider their fate and what use I may make of them at an appropriate time.