Skrijel v Mengler - [2003] VSC 137

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5446 of 1993

MEHMED SKRIJEL	Plaintiff
V
JOHN CARL MENGLER	Firstnamed Defendant
COMMONWEALTH OF AUSTRALIA	Secondnamed Defendant
GARY WESTON COOK	Thirdnamed Defendant
STATE OF VICTORIA	Fourthnamed Defendant

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2003
DATE OF RULING:	16 April 2003
CASE MAY BE CITED AS:	Skrijel v Mengler and Ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 137

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Skrijel in person
For the Firstnamed Defendant	Mr M. Tovey QC with Mr P. Marzella	Hardham Dalton & Sunberg
For the Secondnamed Defendant	Mr B. Walters SC with Mr K. Mueller	Australian Government Solicitors
For the Thirdnamed Defendant	Mr J. Santamaria QC with Mr M. Gindberg	Victorian Government Solicitors
For the Fourthnamed Defendant	Mr R. Gipp	Ebsworth & Ebsworth

HIS HONOUR:

The plaintiff seeks production by the fourth defendant, the State of Victoria, of certain guidelines for responses to threats received against police. The guidelines came into force in or about October 1994 and remain in force. The plaintiff contends that the contents of the guidelines may assist him in demonstrating that reports made by the firstnamed defendant in 1985 as to apprehensions that the plaintiff would carry out threats against the first defendant and other members of the police were not true. The plaintiff seeks to show, that the first defendant did not comply with the procedures for which the guidelines provide, and thus that it is to be inferred that the first defendant did not harbour the fears which he reported that he held.

Production of the guidelines is resisted by the fourth defendant on the basis that the guidelines are the subject of public interest immunity and Superintendent Peter John Billing, the officer in charge of the civil litigation division of the Victoria Police, has sworn at affidavit this day in support of the claim of privilege. Superintendent Billing deposes, amongst other things, that prior to 1989 Victoria Police had no discrete process for responding to threats against serving members of the force. Such threats, he says, were investigated routinely in the same manner as threats against other persons in the community. Things changed in 1989. Thereafter until 1994 the Victoria Police Bureau of Criminal Intelligence managed a Victoria Police process for responding to threats against serving members of the force which was introduced in 1989. But all records held in relation to that process have since been destroyed in accordance with routine record disposal processes.

Superintendent Billing further deposes that the current guidelines were adopted in October 1994 and are still in force and that they are regarded as being so confidential that they are not issued to police personnel below the rank of divisional superintendent. Superintendent Billing says that the guidelines contain specific information currently in use concerning the methodology to be employed and actions to be taken in protecting police who have been subjected to threats of violence. If…

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.

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Details

Case: [2003] VSC 137
Decision Date: 16 April 2003

CaseChat Overview and Summary

In the Supreme Court of Victoria, the plaintiff, Mehemed Skrijel, sought the production of certain guidelines from the fourth defendant, the State of Victoria, which were intended for responses to threats received against police. The plaintiff argued that these guidelines might assist in proving that the first defendant, John Carl Mengler, did not follow the procedures outlined in the guidelines when he reported threats made by Skrijel in 1985. The plaintiff's claim was based on the notion that the absence of compliance with the guidelines could infer that the first defendant did not genuinely hold the fears he reported. The defendants resisted the plaintiff's application on the basis of public interest immunity, with Superintendent Peter John Billing swearing an affidavit in support of the claim of privilege, stating that the guidelines contained confidential information critical to the methodology and actions used to protect police from threats of violence.

The central legal issue before the court was whether the public interest in maintaining the confidentiality of the guidelines outweighed the public interest in their production for use by the plaintiff. The court had to weigh the competing aspects of public interest: the need for transparency and the potential benefits to the plaintiff against the risk of compromising police safety and the effectiveness of the guidelines. The court examined the principles governing public interest immunity, referencing previous cases such as Commonwealth of Australia v Northern Land Council, Eastman v R, and National Tertiary Education Union v The Commonwealth. These authorities emphasised the need for a balancing exercise between admitting evidence and preserving confidentiality.

The court ultimately determined that the public interest in maintaining the confidentiality of the guidelines was paramount. The judge concluded that the plaintiff's need for the guidelines did not outweigh the risk of compromising police safety and the effectiveness of the guidelines. The court observed that the plaintiff could still make his point through other available evidence, such as the contents of Superintendent Billing's affidavit. Therefore, the application for the production of the guidelines was denied, and the confidential document was to be returned to the fourth defendant.

Orders