Robinson v State of Victoria
[2018] VSC 470
•24 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S CI 2016 0171
| WARWICK CRAIG ROBINSON | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDICIAL REGISTRAR: | Clayton |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 August 2018 |
DATE OF JUDGMENT: | 24 August 2018 |
CASE MAY BE CITED AS: | Robinson v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2018] VSC 470 |
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PRACTICE AND PROCEDURE – Discovery – Whether redacted documents subject to public interest immunity – Whether release of documents would be injurious to public interest – Whether plaintiff should have access in the interest of fair administration of justice – Whether public interest outweighs desirability of documents being released – Police training, tactics, and equipment – Inspection of documents pursuant to Evidence Act 2008 (Vic) - State of Victoria v Brazel [2008] VSCA 37 - Ryan v State of Victoria [2015] VSCA 353 – Plaintiff granted access to document.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monty QC with Mr K McDonald | Nevin Lenne & Gross |
| For the Defendant | Mr L Brown with Mr J Cavanough, solicitor | Landers & Rogers |
JUDICIAL REGISTRAR:
This matter was referred to me for hearing by Justice Dixon.
The plaintiff was one of three police officers who attended a domestic violence event on 8 August 2010 in which he was assaulted by a person, Slater.
He sues the State of Victoria in negligence and pursuant to s 74(1) of the Victoria Police Act 2013 (Vic).
His allegations of negligence can generally be summarised as failures in relation to:
(a) Risk assessment;
(b) Resource allocation; and
(c) Preparation and training.
The defendant has sworn two affidavits of documents in the proceeding, dated 6 September 2017 and 30 July 2018. In those affidavits the defendant has made discovery of a number of documents with certain parts redacted. The plaintiff seeks an un-redacted copy of the documents. The defendant claims that the redacted portions of the documents are subject to public interest immunity (‘PII’).
Having regard to the decision of the Court of Appeal in Ahmet v Chief Commissioner of Police[1] (‘Ahmet’) the parties submitted that I ought to inspect the documents:
In our view, his Honour erred in acting on the basis of the general statements made by Sergeant Harrison, rather than by inspecting the subpoenaed documents for himself and forming a view about whether any damage might result from disclosure. In the absence of his Honour having a good appreciation of the substance of the information that the Chief Commissioner contends is ‘sensitive’ in the public interest and the potential damage that would likely result if it were disclosed in the context of the litigation, no proper weighing of the merits of the competing claims could be undertaken.[2]
[1][2014] VSCA 265.
[2]Ibid [28].
The claim for public interest immunity is based on the contents of the documents, rather than the ‘class’ into which they fall. I agree that inspection of the documents is appropriate and that, pursuant to s 133 of the Evidence Act 2008 (Vic), I have the power to so inspect.
The table below sets out the redacted documents, the nature of the redactions, and the basis of the public interest immunity claimed.
Document Redaction PII claim 56 - Extract from OSTT Syllabus - Session Plan Distance of safety corridor Would reveal recommended or optimal ranges for particular tactical options (safety corridors) 66 - Extract from OSTT Syllabus - Practical Lesson Ready Reckoner Information about particular tactical responses with details of how to perform those responses, including a diagram Would reveal recommended tactical options and training drills, and would expose the extent and exact nature of members’ training and limitations of that training. 71 – Extract from OSTT Syllabus – Session Plan – Subject Control - team tactics Detailed information about how particular self-defence procedures are to be undertaken Would reveal recommended tactical options and training drills, and would expose the extent and exact nature of members’ training and limitations of that training 92 – Issue Cover Sheet prepared by Inspector Mark Arneil Names and positions of various people No basis set out 119 - Session plan CED Rural Pilot training Course - X2 OC Streamer Maximum effective range and minimum distance for use of OC Streamer Would reveal recommended or optimal ranges for particular tactical options Document Redaction PII claim 119 - Session plan CED Rural Pilot training Course - X2 OC Streamer Particulars of various drill techniques including detailed information about what each participant in the drill is to do, including diagrams Would reveal recommended tactical options and training drills, and would expose the extent and exact nature of members’ training and limitations of that training 121 - Session plan CED theory Part 1 introduction to the CED Information about maximum range and effective range of a device, and identification of alternative options Would reveal the recommended or optimal ranges for particular tactical options and includes information about tactics that are not publically known 150 – People Development Department - Session Plan Overview Part 1 First Defence X2 OC Streamer Information about effective and optimal range of a device Would reveal the recommended or optimal ranges for particular tactical options and identify the physical limitations of OC spray. 169 - People Development Department - Session Plan Overview Part 1 First Defence X2 OC Streamer Information about effective and optimal range of a device Would reveal the recommended or optimal ranges for particular tactical options and identify the physical limitations of OC spray.
With the exception of document 92, which redacts the names and professional positions of a number of people, the redactions are of information about police training and tactics and information about devices, such as OC spray.
Pubic Interest Immunity
Derham AsJ in Heckler & Koch GMBH v Faxtech Pty Ltd[3] sets out a three-step process for considering a claim for PII:
[3][2016] VSC 697.
(a) the first step is to decide whether there is a risk that production and inspection of the documents in issue would be injurious to the public interest;
(b) the second step is to determine whether there is a public interest in a party having access to those documents because such access is in the interests of the fair administration of justice; and
(c) the third step is to determine whether the public interest in the fair administration of justice outweighs the desirability that the information not be disclosed.
In State of Victoria v Brazel[4] (‘Brazel’) this Court emphasised that the decision to be made on a claim of PII will depend upon the circumstances in which the claim is made. The Court said:
Everything turns on the character of the particular information in issue and the nature of the particular litigation (or administrative investigation) in which the occasion for disclosure of the information arises. Before embarking on the balancing exercise, the court must assess the strength of the arguments for non-disclosure and disclosure respectively. The court must scrutinise carefully what is said to be the potential damage to the public interest if the information is disclosed and, equally, what is said to be the significance of the information in the litigation.[5]
[4][2008] VSCA 37.
[5]Ibid [47].
The defendant’s claim for PII is supported by an affidavit of Superintendent Peter Seiz, sworn 15 August 2018. Superintendent Seiz has been a member of Victoria Police for 32 years, he became a detective in the Crime Department and has held the role of Superintendent of the Operational Safety Division within People Development Command since January 2016. In that role he is responsible for the delivery and management of programs and training including organisation-wide safety, incident, and emergency management training.
He says that:
Production of the redacted information in these documents would be prejudicial to the public interest because it would enable people to identify and anticipate when the Victoria Police member may deploy certain tactical options and to develop and employ counter measures to reduce the effectiveness of the tactics and equipment used by police. The efficacy of those tactical options would therefore be diminished, creating a risk to the safety of the public and police members, and to the success of police operation.[6]
[6]Affidavit of Peter Hans Seiz, sworn 15 August 2018 at [11].
In the case of Ryan v State of Victoria,[7] (‘Ryan’) Tate J said that the Court is to:
…accord weight to an assertion by an authorised representative of government that the public interest would be at risk in the event of disclosure.[8]
[7][2015] VSCA 353.
[8]Ibid [57]; see also Sankey v Whitlam (1978) 142 CLR, 1, 44, 46.
The redactions contain information about certain tactical procedures, including specific instructions about how particular manoeuvres are to be undertaken by police officers, and specific distances involved in the use of equipment. I am satisfied that there is a public interest in protecting documents that reflect ‘the workings or operations of those who are responsible for the governmental function of the maintenance of social peace and order, the police’.[9]
[9]Above n 7 [105].
The plaintiff contends that he has an interest in obtaining un-redacted versions of the documents, precisely because they contain details of police tactics, training, and devices.
There is little information in the pleading about what happened during the actual incident which is the subject of the proceedings. The plaintiff pleads that the defendant was negligent in numerous ways. From the details recorded in the ‘Incident Fact Sheet’ provided by way of discovery and handed up in Court, likely issues at trial will include:
(a) the processes for assessing risk in cases involving aggressive offenders;
(b) the procedure for engaging with an aggressive offender;
(c) the appropriate use of foam spray;
(d) the efficacy of foam spray;
(e) risk assessment after use of foam spray; and
(f) the application of cuffs after use of foam spray or other defensive techniques.
The redactions go to the procedures for engaging with an aggressive offender, the use of foam spray and the efficacy of foam spray. They do not go to risk assessment or the application of cuffs. However, it is likely that the redactions would assist the plaintiff to determine whether the events of 8 August 2010 proceeded in accordance with the policies and procedures of the defendant and whether the use of foam was in accordance with the guidelines.
I am satisfied, therefore, that there is a public interest in the plaintiff having access to the redacted parts of those documents because such access is in the interests of the fair administration of justice.
Having formed the view that disclosure of the documents would be contrary to the public interest and also that non-disclosure would frustrate the public interest in the administration of justice, I must assess whether the public interest in the administration of justice is outweighed by the public interest in keeping those documents confidential.
Without limiting the matters that the Court may take into account, s 130(5) of the Evidence Act2008 (Vic) sets out the matters which the Court must take into account when determining whether the evidence ought to be excluded on the basis of PII. For the purposes of this application the relevant considerations the Court must take into account are:
(a) the importance of the information or the document in the proceeding;
(b) the nature of the cause of action to which the documents relate and the nature of the subject matter of the proceeding;
(c) the likely effect of adducing evidence of the information or document and the means available to limit its publication; and
(d) whether the substance of the information or document has already been published.
The plaintiff contends that a further relevant consideration is the identity of the persons to whom the documents will be disclosed. The plaintiff is a serving police officer. The witnesses to whom these documents might be shown are also sworn police officers. The matter is proceeding before a judge alone. The plaintiff contends that these redactions are likely to be about matters in which the plaintiff had already received training, or should have received training.
In this case the plaintiff claims that the defendant was negligent in, amongst other things: failing to comply with the provisions of the Operational Safety and Tactics Training (‘OSTT’) Package; failing to comply with policies and procedures for attending risky incidents; requiring the plaintiff to attend the premises with inadequate support; failing to provide adequate instructions; and failing to provide adequate equipment.[10]
[10]Amended Statement of Claim, filed 21 February 2018, [16].
In Brazel the Court of Appeal held that the claim for public interest immunity had not been made out by the State, and therefore it was unnecessary for it to address the competing interests. However, the Court expressed its agreement with the trial judge’s view that the information in question ‘goes to the heart of the issues in the litigation’.[11] The Court considered that an important feature of that litigation was that it concerned the duty of care owed by the State to the plaintiff. The Court considered that:
…it would seem ‘curiously inappropriate’ to uphold a claim of PII in respect of a report disclosing shortcomings in the security arrangements in the Acacia Unit when Mr Brazel’s case alleges shortcomings of exactly that kind. Courts should be slow to uphold claims of PII where to do so will have the effect of inhibiting the investigation, by proper process, of allegations of negligence or maladministration by public officials.[12]
[11]State of Victoria v Brazel [2008] VSCA 37, [70].
[12]Ibid [74]
In this case the allegations of negligence go to the heart of the redactions. For example, the plaintiff pleads that the defendant failed to comply with the provisions of the OSTT Package, parts of which document have been redacted. It is difficult for the plaintiff to make out his claim if he cannot make use of the OSTT Package with which he says there was non-compliance.
Whilst superficially similar, this case is distinct from Ryan. That case was also concerned with the public interest in disclosing or not disclosing police manuals and procedures. In Ryan, the plaintiff alleged that he was injured when the first defendant, Leading Senior Constable Turner, riding her police horse, Troophorse Upwey, advanced upon protestors, including the plaintiff. The plaintiff alleged that Turner, on Troophorse Upwey, fell to the ground and rolled onto the plaintiff. The plaintiff alleged that Turner had caused Troophorse Upwey to roll on him using a ‘rehearsed, controlled maneuver (sic)’.[13] The plaintiff did not plead that Turner was reckless, or that she ‘foresaw the probability (or possibility) of Troophorse Upwey…rolling on to Ryan’ and proceeded regardless.[14] Rather the allegation of negligence was that Turner acted in a ‘rehearsed, controlled maneuver (sic)’.[15] The Court of Appeal considered that the documents in dispute could have relevance only to a claim that the manoeuvre was rehearsed. However both the trial judge and Justice Tate on appeal concluded that none of the documents went to this issue. The Court of Appeal upheld the trial judge’s view that the documents in dispute were not relevant to the central issue and would not help the court to resolve at trial whether the allegations had been made out.[16]
[13]Ibid [37].
[14]Ibid [131].
[15]Ibid [37].
[16]Ibid [134]–[135].
In contrast, the documents in dispute in this case do go to the central allegations made in the plaintiff’s claim, that is, that there was non-compliance with the OSTT Package and other policies and procedures. After reviewing the documents I have concluded that they are of importance to the plaintiff’s case, and go to the plaintiff’s cause of action, that is, that the State was negligent in failing to comply with its own policies and procedures, failing to provide adequate support and instruction, and failing to provide adequate equipment.
In determining the likely effect of adducing evidence in the documents, I give weight to the evidence of Superintendent Seiz that this information could enable people to determine in advance the likely tactics of Victoria Police, which in turn could cause those people to employ counter measures, decreasing the effectiveness of police tactics and rendering both the public and the police less safe. This is a serious consequence.
However, unlike other cases in which the State has argued that disclosure, even if limited to the plaintiff, would have a very serious effect, the plaintiff in this case is a sworn police officer. I do accord this fact some weight, as in addition to the obligations imposed on him by this litigation, he has additional obligations in his role as a serving member of the Victoria Police. I do not consider that disclosure to this plaintiff carries the same risks and effects as would disclosure to a member of the general public, as in Ryan or Ahmet, or a prisoner as in Brazel.
I am required to consider the means available to limit publication of the information in the event that it is adduced. The plaintiff submitted that he was agreeable to any reasonable steps the defendant wished to implement to ensure that the documents were not widely published, and would not oppose orders relating to the suppression of those documents, or the closure of Court during the hearing when evidence was adduced relating to those documents.
In my view, it is a matter for the trial judge to determine whether and how the documents should be received into evidence at trial. The defendant is entitled to make any application it sees fit in that regard. For the purposes of this discovery application I consider that there are steps that can be implemented to ensure that the publication of the information is limited. I will hear from the parties in regard to the appropriate steps.
For completeness, I note that there is no evidence before me that the material has previously been published, although some or all of it may have been published to the plaintiff in the course of his training. The fact that the material has not previously been published weighs in favour of non-disclosure, however, in weighing up all the considerations I have determined that the public interest in the plaintiff having access to the material outweighs the public interest in its confidentiality and will make orders accordingly.
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