Pitt v State of Victoria
[2010] VSCA 326
•7 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2010 0109
| ANTHONY JAMES PITT | Applicant |
| v | |
| STATE OF VICTORIA | Respondent |
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| JUDGES | MANDIE and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 12 November 2010 |
| DATE OF JUDGMENT | 7 December 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 326 |
| JUDGMENT APPEALED FROM | Pitt v Victoria Police (Unreported, Victorian Civil and Administrative Tribunal, Judge Harbison, 1 October 2008) |
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APPEAL – Application for leave to appeal out of time – Complaint about the applicant’s treatment while in police custody – Whether police aware of the applicant’s mental illness – Whether any arguable case of discrimination raised – Whether applicant established a connection between any such awareness and the alleged ill-treatment he received – Whether any prejudice to the respondent – Long delay – Availability of documentation – Application dismissed.
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| Appearances: | Counsel | Solicitors |
| The Applicant appeared in person by videolink | ||
| For the Respondent | Mr J R M Tracey | Victorian Government Solicitor |
MANDIE JA:
I agree with Harper JA.
HARPER JA:
The applicant (Mr Anthony Pitt) alleges that he was treated badly by the police in Ballarat. He claims that, while he and a number of others were in the Ballarat holding cells, a member of the police force came to the cell block and told his cell mates that he had raped a 14 year old girl. This was enough to turn his cell mates against him. But that was not all. According to Mr Pitt, a policeman who he identified as ‘Officer Brouwers’ would at meal times ask the others in the cells if they wanted to spit in his food before he ate it. Other police told him not to ask for anything because he would not get it. Consistently with this, when Mr Pitt asked for a drink of water, Officer Brouwers threw him a cup and said ‘get it out of the toilet’. Mr Pitt further alleges that when he was being transferred to another location, the same policeman stood near the van and said: ‘You’d better plead guilty. Don’t make me go witness against you.’ He had earlier told Mr Pitt that:
... if I did not plead guilty to the charges against me he would make life harder for me in prison. At that time I was unsure whether to plead guilty to the charges against me or not.
Mr Pitt added that the police would not allow him to make a telephone call and, without asking him who he wanted to represent him, contacted a solicitor to fill that role.
Mr Pitt contends that the Ballarat police treated him this way because they ‘knew that I was mentally ill, and they made fun of it in certain ways, or seemed to have made fun of it’. That, he said, had the desired consequence, which was to ‘stir me up’.
If this account is true, then Mr Pitt had reason to complain. The law, however, is that complaints or allegations such as those brought by him cannot be acted upon
by a court, by a tribunal such as the Victorian Civil and Administrative Tribunal (VCAT), or by a body such as the Victorian Equal Opportunity & Human Rights Commission, unless they are properly substantiated; and the person or organisation making a complaint or allegation, whether that be an authority such as the police, or a citizen such as Mr Pitt, bears the onus of proving it.
So, if Mr Pitt is to succeed in this litigation, he must first prove the allegations he makes. And, in the circumstances of this case, there are three further barriers to overcome. First, it all happened a very long time ago: Mr Pitt, having been charged with rape, was an occupant of the Ballarat holding cells between 28 November 1998 and the following 20 December. Secondly, he has chosen to base his claim against Victoria Police on a particular Act of the Victorian Parliament: the Equal Opportunity Act 1995 (‘the Act’). A consequence is that, in order to succeed, he must prove not only that the offending police knew that he was suffering from a mental illness, but also that they discriminated against him for that reason. Thirdly, his application to this Court is for leave to appeal out of time from an order of VCAT made as long ago as 1 October 2008. By that order, the Tribunal, constituted by her Honour Judge Harbison, dismissed Mr Pitt’s claim. But the summons seeking leave to appeal against that dismissal was only formally filed on 23 August 2010. This is well outside the specified period of 28 days within which an application for such leave must be initiated.
The following appears from the file kept by the Court of Appeal Registry:
·In an affidavit sworn by Mr Pitt on 12 February 2009 he referred to his VCAT application. According to him, the order of Judge Harbison should be set aside because it failed adequately to recognise that he was deprived of his human rights by the police when dealing with him and that the police caused him unnecessary pain and suffering and mental trauma.
·There is a form of summons dated 5 October 2009 but it has not been completed and there is no date of receipt stamped on it.
·There is a letter from Mr Pitt, then in Ararat Prison, received by the Court of Appeal Registry on 29 April 2009 stating that he wrote to ‘your office’ early in October 2008 and again on 27 February 2009 about appealing the VCAT decision regarding his complaint against the treatment he received at Ballarat police holding cells on 28–30 November 2008.
·There is a further letter, which was received by the Court of Appeal Registry on 9 November 2009. It refers to previous correspondence, states that Mr Pitt had received no reply, and asks whether he had filled out the paperwork correctly as he had to do it himself.
·There is a letter from Mr Pitt, received by the Associate to Associate Justice Lansdowne on 18 February 2010, in which Mr Pitt says that he wrote to ‘your office’ on 9 November 2009 and 16 December 2009 in regard to appealing against the VCAT decision, but that he had received no reply.
·There is a proposed notice of appeal stating that Mr Pitt wished to appeal because he did not feel that the inhumane treatment he received was properly addressed and that the police failed their duty of care in dealing with him.
·An internal memorandum of the Registry dated 13 August 2010 noted that Mr Pitt needed to be told that if he sought to proceed with his appeal against the VCAT order he would need to complete a fee waiver form in respect of the summons he sought to file.
·On 23 August 2010, the Deputy Prothonotary granted an application by Mr Pitt to waive payment of the prescribed fee of $750.50.
The summons of 23 August this year appears to summarise the proposed grounds of appeal when it states:
2.That Judge Harbison did not address the [cruel] and [inhumane] treatment I was subjected to by members of police on 28 November 1998.
3.Judge Harbison [dismissed] my claim saying that … she could not see a link between the treatment by the [police] and my mental [health] at that time.
4.I have medical records that prove I was [mentally] ill at the time and the police used my [poor] mental state of mind to gain a plea of guilty.
The affidavit in support of Mr Pitt’s present application is the one that was sworn by him on 5 October 2009. In the affidavit, he says that he wrote to the Court on 16 October 2008. But if the letter reached its intended destination, there is now no record of it. Otherwise, Mr Pitt makes the point that he has had to do the paperwork himself. This has been difficult, and has taken time.
Section 148(2) of the Act allows a period of 28 days within which to appeal against an order of the Tribunal. By s 148(5), however, this Court may at any time extend the time fixed by the section. Accordingly, the question is whether that power should be exercised in this case.
Were there only one issue, that being whether Mr Pitt had written to the Court, as he says he did, on 16 October 2008, I would grant the leave he seeks. For one thing, a copy of the prison mail list is attached to Mr Pitt’s affidavit of 5 October 2009. This shows that he wrote to the Court on 16 October 2008. There is additional evidence to suggest that Mr Pitt wrote other letters to the Court which either failed to arrive, or were not acted upon when they did.
We are, however, required by law to take other matters into account. My starting point is the other material in Mr Pitt’s affidavit of 5 October 2009. This, in substance, is a repetition of his complaint of discrimination. Attached to his affidavit is a copy of that complaint as made to the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’); a copy of the orders made by VCAT; and copies of police records pre-dating November 1998, which Mr Pitt says show that the police knew in 1998 that he was mentally ill. In particular, a memorandum dated 18 May 1998 from the Nhill Police to the Horsham Police establishes that, as at May that year, a time when Mr Pitt was in custody in Horsham, he was believed by the police at Nhill to be suicidal.
Mr Pitt relies on this memorandum as evidence that the police were aware of his mental disability. It does not, however, form an adequate foundation for that conclusion. The fact is that many who commit suicide are not mentally ill. As will be seen, the records in evidence before VCAT indicate that Mr Pitt has indeed suffered from mental illness; but the police would not know that merely from the indications he gave when in custody at Nhill that he was suicidal.
The history of the matter up to its dismissal by VCAT is summarised in an affidavit sworn on 4 October 2010m by Hayley Lisa Petrony on behalf of the respondent. As appears from the affidavit, the applicant lodged his initial complaint with the Commission on 4 February 2008. In this complaint, he expressed his belief that Officer Brouwers was aware that ‘I have a diagnosed mental illness’. He also described the invitation to spit in his food, and the reaction to his request for a drink of water. He referred to Officer Brouwers’ threatened retribution should Mr Pitt plead not guilty, and his own inability at that time to make sound decisions. By way of summary, Mr Pitt said that he was subjected to humiliating, cruel and degrading treatment by Officer Brouwers and other police officers because of his depression and schizophrenia. He also expressed his belief that they failed to adequately accommodate his needs as one who was suffering from a mental impairment.
The Commission sought and received a response from Victoria Police. In that response, dated 26 February 2008, the police referred to a stipulation in the Police Records Act 1973, the effect of which is (according to the police) that certain records, including some relevant to this case, are only to be retained for seven years; and Mr Pitt’s complaints arose in 1998, ten years before.[1] Attendance registers and custody record books, however, are to be kept indefinitely. These revealed, according to the police response, that ‘at no time did the named member Brouwers attend to the complainant whilst in custody in Ballarat.’ The response added that attempts had been made to contact Mr Brouwers, but he was no longer a police officer.
[1]There is no such legislation as the Police Records Act. The reference may have been to the Public Records Act 1973, but that does not say anything about the time within which police records must be retained.
After conducting its investigation, the Commission in April 2008 declined to entertain the complaint. It held that it was ‘lacking in substance.’[2] In a letter dated 8 April 2008 to Victoria Police, the Commission recorded that the reason for the decision was that Mr Pitt had not given ‘an explanation of why ... the alleged less favourable treatment is linked to his impairment.’ Unfortunately, neither the affidavit of Mr Pitt nor that of Ms Petrony reveal whether Mr Pitt received an equivalent letter, in which it was explained to him, as the Commission had explained to the police, that (a) in the opinion of the Commission he had not made the connection between his impairment (mental illness) and his alleged mistreatment by the Ballarat police, and (b) unless such a connection was demonstrated, the Commission could not find in his favour.
[2]See s 108(1)(a) of the Act.
Mr Pitt requested that his complaint be referred to VCAT. That was done. A directions hearing took place on 16 June 2008, following which Mr Pitt provided a large number of documents relating to, among other things, his alleged treatment in custody and his medical history. The medical records (which are exhibited to Ms Petrony’s affidavit and which appear to be part of the police records) show a history of psychiatric treatment and several suicide attempts. There does not appear to be anything in them indicating what might have been known about Mr Pitt by Ballarat, as opposed to Nhill and Horsham, police.
On 8 September 2008, there was a further directions hearing before VCAT. During the course of that hearing, Judge Harbison referred to a statement of complaint prepared for Mr Pitt by the Equal Opportunity Commission and dated 11 February 2008, and added:
Now, I think I explained to you last time that you will have to prove that you have a diagnosed mental illness and that the relevant police officers were aware of it and that you’ll further have to prove that you were treated in a different way as a result of having that mental illness which justifies you to relief under the Equal Opportunity Act.
If Mr Pitt did not know before 8 September, he was certainly told then, that he could only succeed if he could demonstrate that the behaviour of the Ballarat police about which he complained was directly linked to their knowledge of his mental illness. It was in those circumstances that the matter was listed for a final hearing on 1 October 2008. It seems that Mr Pitt appeared before VCAT by way of video-link - as he did on the present application - and the State of Victoria appeared by counsel (on behalf of Victoria Police). At the outset counsel for the State indicated that she might wish to make a no case submission at the conclusion of Mr Pitt’s evidence. Also at the outset Mr Pitt indicated that he might wish to call other witnesses.
Her Honour noted that the Act forbade discrimination against another person by refusing to provide goods or services for the other person, by imposing discriminatory terms on which goods or services are provided, or by subjecting the other person to any other detriment in connection with the provision of goods or services. She recorded her understanding that Mr Pitt categorised himself, when in the Ballarat cells, as a recipient of such discrimination – manifested in the incidents which he had outlined in the file, and about which she presumed he would give evidence. Her Honour added:
Now, the law is that discrimination can only be found proven if there is a connection between the attribute relied upon and the conduct that you complain about.
Her Honour therefore correctly informed Mr Pitt, for the second or perhaps the third time, that he had to show not only that he suffered a detriment, but also that there was a relevant connection between that detriment and the discriminatory behaviour.
Mr Pitt gave sworn evidence about the treatment he received while in the Ballarat holding cells between 28 November and 20 December 1998. He volunteered nothing, however, which connected that behaviour to his impairment. When the judge, who of course was alive to the point, asked him to describe what – according to him – established the connection, he replied ‘they would have known that I was mentally ill, because I have got a track record of it. I sent you the medical files’.
The files which Mr Pitt forwarded to VCAT are exhibited to Ms Petrony’s affidavit. I have examined them. They do not contain anything to indicate that the police at Ballarat were aware in November or December 19998, or indeed at any time, that Mr Pitt was suffering from a mental illness. Indeed, in a letter dated 26 February 2008 and addressed to the Commission, the Human Resource Department of Victoria Police noted that:
The complainant has an extensive police history recorded on our Law Enforcement Assistance Program (LEAP). LEAP provides the ability to formalise the management and supervision of the investigation of crime and recorded event matters. The system also has full dossiers recorded on the individual and a red flag alert for members to identify social or mental disorders e.g. drug associations. LEAP has no record of the complainant having a psychological condition.
Her Honour acknowledged receipt of this material, and asked Mr Pitt to identify what it was in it upon which he relied. He responded that he did not have the material with him, although he had a copy in his room. Her Honour then asked what Mr Pitt thought showed that the officers at Ballarat ‘would have known that you have a mental impairment’. He replied that he had a ‘track record’, including his attempt earlier in 1998 to commit suicide in the Horsham police cells. This, he understood, would have been on his file:
[S]o … when the police at Ballarat contacted the police at Horsham to check me out they would have been made aware that I … had a history of mental illness. They also called in a doctor to prescribe … me ‘Zoloft’ for depression. So they would have been aware that I was mentally ill.
Her Honour then asked Mr Pitt how he said that he was treated differently as a result of his impairment. She said:
Well, perhaps if I can say this to you: at the moment, you have given some details of what you say happened to you. Why should I form a view that they happened to you because you’re mentally impaired, rather than because they happened to you because of the circumstances in which you found yourself?
Mr Pitt replied that they seemed to be making fun of it, ‘stirring me up’. Her Honour said:
You see, what you have to show is that you have been treated differently than a prisoner in your situation would have been treated who didn’t have a mental illness.
Mr Pitt replied:
I don’t know how I can do that, except that, you know, they knew that I had a mental illness and they played on that to try and break me down to sign a document to say that I pleaded guilty.
Mr Pitt then referred to a passage from Ross on Crime dealing with the inadmissibility of confessions obtained by coercion.
There followed a discussion between Mr Pitt and the Tribunal about other witnesses he might wish to call. He indicated that he wanted to ask certain other (unidentified) prisoners whether they had been in the cell block at the time, whether they remembered that the named policeman asked them if they wanted to spit in his food and whether they were told that he had raped a 14 year old girl ‘to stir them up and give [him] a hard time.’
Her Honour then said:
Mr Pitt, I’m still faced with the problem that I had at the start of this hearing … that, even if the claims that you make are proven, there’s no evidence that can be brought to link your claim about what happened to you with your impairment, and I say this without making a decision one way or the other as to whether your evidence is true. And I don’t think that I need to go as far as to make a decision one way or the other as to whether what happened to you did happen, and for that reason, I don’t think it’s necessary to call the witnesses that you have identified, because, even if I was convinced that the incidents which you have outlined happened, and even if I was convinced that, at the time they happened, the police knew that you were a person with an impairment, there’s no evidence in this case at all connecting what happened to you with the existence of that impairment.
If I can say quite plainly, if that conduct was found proven, there may be many reasons why that conduct took place. It may be that the police officers took a certain view about what it was that they thought that you had done. It may be that they treated you in that way for lots of reasons, but I have to be satisfied that the reason that they treated you that way was because of your mental condition. And, as I think you quite candidly indicated, it’s very difficult to prove that, and I think, in your case, it’s not going to be possible for you to make that connection. Unless there’s anything that you can say to me to show that connection, then I propose to make an order that the proceeding be dismissed. Now, having heard me outline that problem, is there anything that you can say to me as to why I should find a connection between your mental state and the events which you have outlined?
Mr Pitt replied:
No, not really. I can’t really think of anything, your Honour.
Her Honour then said:
Yes, thank you. Well, the application will be dismissed, and that then is the end of the proceeding insofar as this tribunal is concerned.
The respondent submits that Mr Pitt has failed to explain his failure to seek leave to appeal within time and says that he should not have an extension of time to do so. The respondent submits that it will suffer real and substantial prejudice if Mr Pitt is allowed to pursue the application for leave, any appeal (if leave is granted) and the complaint itself (if a re-hearing thereof is ultimately ordered) because nearly 12 years have elapsed since the relevant conduct. The respondent contends that prejudice arises because of the long delay and includes prejudice arising from the fact that potentially relevant documents are, according to the police, no longer available.
In fact, it seems that the documentation retained by the police does not assist Mr Pitt. And the other side of the coin is that the lack of documentation to support the case which Mr Pitt seeks to mount is a real obstacle for him. But in any event, nothing in the material before this Court, and nothing put to the Court by Mr Pitt on the hearing of this application, even hints at the possibility that, were the matter to be further pursued, he would be able to make out his case. He is now in a position to name only one of those with whom he shared a cell at the relevant time. There is no evidence that that person is available to be called. There is likewise no evidence to suggest that, if called, the witness would be in a position to give evidence connecting any police misconduct with Mr Pitt’s mental health.
In these circumstances, there is force in the respondent’s submission that Mr Pitt’s case is hopeless. He has not raised an arguable case of discrimination, let alone shown that there is any question of law which would justify a grant of leave.
The application must, for these reasons, be dismissed.
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