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:

1. 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.

1. 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.

1. 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 the contents of the documents were disclosed to some elements in society, it would compromise the effectiveness of the methodologies and actions and possibly place at risk a significant number of police and their families at present being dealt with in accordance with the guidelines.

1. The guidelines have been provided to me on a confidential basis and they appear to me to confirm what is said about them by Superintendent Billing.  Insofar as I am able to assess such a matter without expert guidance, they seem to me in truth to be guideline procedures for dealing with threats of violence made against police members, and disclosure of their contents might well compromise the ability of police to deal with threats of that kind. 

1. The principles which govern the determination of claims of public interest immunity are well-known.  The High Court dealt with the subject at some length in the Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 and it has since been dealt with by the Full Court of the Federal Court in Eastman v R (1997) 76 FCR 9 and in a range of cases that have followed and applied those earlier authorities. Weinberg J undertook a detailed analysis of the authorities and principles in National Tertiary Education Union v The Commonwealth (2001) 111 FCR 583, at 595-598. The authorities call for a balancing exercise whereby a trial judge must consider and weigh up two competing aspects of the public interest, namely, whether the public interest in admitting into evidence material in the document that is the subject of a claim of public interest immunity and the public interest in preserving secrecy or confidentiality in relation to that material (see the decision of Mansfield J in Woodroffe v National Crime Authority (1999) FCA 1128 at [21] – [25]).

1. In my opinion there is little which the plaintiff would gain by obtaining access to the guidelines, because any point of the kind which he seeks to make may be made by reference to so much of the material as is disclosed in Superintendent Billing's affidavit.  That is to say, it is apparent from Superintendent Billings' affidavit that there are procedures in existence, and if he is so advised the plaintiff is at liberty to point to other evidence as demonstrating that there do not appear to have been any procedures of that kind followed in this case.  On the other hand, as I have said, it appears to me that it would be very much against the public interest if the procedures were disclosed.

1. Accordingly, I consider that the public interest in maintaining the confidentiality of the document outweighs the public interest in having the document produced for use by the plaintiff, and consequently I uphold the claim for public interest immunity.

1. I refuse the application made by the plaintiff for production of the guidelines for responses to threats received against police and I will return to you, Mr Gipp, the confidential document.

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