Smith v Thompson (No 2)
[2021] VSC 632
•30 September 2021
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02888
| SIMON SMITH | Plaintiff |
| - and - | |
| ACTING DETECTIVE SENIOR SERGEANT STEVE THOMPSON (30366) VICTORIA POLICE | First Defendant |
| - and - | |
| MELBOURNE MAGISTRATES’ COURT | Second Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2021 |
DATE OF RULING: | 30 September 2021 |
CASE MAY BE CITED AS: | Smith v Thompson & Anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 632 |
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ADMINISTRATIVE LAW — Search warrant issued for plaintiff’s residential address — Items seized — Items returned and no criminal charges made against plaintiff — Judicial review of decision to issue search warrant — Whether the plaintiff can inspect affidavit filed in support of warrant issued — Whether the affidavit has forensic purpose for the plaintiff’s application — Whether public interest immunity applies — Supreme Court (General Civil Procedure) Rules 2015 r 42.13 — Crimes Act 1958 s 465 —Evidence Act 2008 s 130.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | Self-represented litigant |
| For the First Defendant | Mr A Albore, solicitor | Victoria Police, Legal Services Department |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background......................................................................................................................................... 1
Magistrates’ Court file...................................................................................................................... 2
Applicable Principles – inspection of Magistrates’ Court file................................................ 2
Analysis.......................................................................................................................................... 6
Applicable principles – public interest immunity claim........................................................... 7
Public interest immunity claim..................................................................................................... 13
Section 130(5)(a) importance of document in the proceeding.............................................. 13
Analysis............................................................................................................................... 14
Section 130(5)(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding............... 14
Section 130(5)(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication.......................................................................... 14
Analysis............................................................................................................................... 15
Section 130(5)(e) whether the substance of the information or document has already been published............................................................................................................................ 16
Analysis............................................................................................................................... 16
Conclusion......................................................................................................................................... 16
HER HONOUR:
Introduction
Mr Simon Smith, the plaintiff, applies to inspect a Magistrates’ Court file. That file was sent to the Supreme Court of Victoria and is available for inspection should the Court allow. The file relates to a search warrant and includes an affidavit supporting Victoria Police’s application for the warrant. The warrant was issued and executed at Mr Smith’s home address. Items were seized. Recently, the seized items were returned to Mr Smith. He was not charged with any offence regarding them. In this proceeding, Mr Smith seeks judicial review of the Magistrate’s decision to issue the search warrant. This ruling concerns Mr Smith’s application to inspect the Magistrates’ Court file. His application is opposed by Victoria Police on the basis that there is no legitimate forensic purpose for production of the affidavit, or alternatively, it is subject to public interest immunity.
I will make orders giving Mr Smith leave to inspect and copy the file produced by the Magistrates’ Court. Reasons follow.
Background
The background to this proceeding is outlined in a ruling of the Honourable Justice Incerti published on 22 July 2020. I gratefully adopt that background.[1]
[1]Smith v Victoria Police & Anor (No 1) [2020] VSC 441.
The following is common ground between the parties. A search warrant was issued by a Magistrate on 5 May 2020 pursuant to s 465 of the Crimes Act 1958 (‘the warrant’).[2] The warrant relates to Mr Smith’s residential address. A member of Victoria Police, named here as the first defendant, made an application for the warrant. The warrant names Mr Smith as a person that the police officer executing the warrant may direct to provide certain information or assistance.[3] The warrant was executed by Victoria Police on 7 May 2020 and items were seized.[4] The seized items were later returned to Mr Smith.[5] He has not been charged with any offence relating to the subject of the warrant.[6] On 3 June 2021, Victoria Police wrote to Mr Smith informing him that the investigation was complete and the matter would not be proceeding further.[7]
[2]Exhibit ‘SS-1’, search warrant issue 5 May 2020, to Mr Simon Smith’s affidavit affirmed on 3 July 2020 (‘the first Smith affidavit’).
[3]Ibid.
[4]Ibid.
[5]First defendant’s written submissions filed 16 April 2021.
[6]The Nicholds affidavit [39].
[7]Exhibit ‘ATT-1’, letter from Victoria Police regarding non-authorisation of the brief for charges related to the search and arrest warrant, to the Mr Simon Smith’s affidavit sworn 28 June 2021 (‘the second Smith affidavit’).
By amended originating motion filed on 16 May 2021, Mr Smith seeks judicial review of the Magistrate’s decision to issue the warrant. Mr Smith claims that it should not have been issued as there were no ‘reasonable grounds’ to support the order pursuant to s 465 of the Crimes Act 1958.[8] The Magistrates’ Court (Melbourne) is the second defendant.
[8]Originating motion filed by the plaintiff on 15 May 2021 [1].
Victoria Police filed an affidavit by its member, Leigh Nicholds, sworn on 11 September 2020 (‘the Nicholds affidavit’). The affidavit was made in response to Mr Smith’s originating motion, and in support of Victoria Police’s claim of public interest immunity.
Magistrates’ Court file
I have inspected the electronic Magistrates’ Court file provided to the Supreme Court of Victoria. It comprises nine pages. It contains an affidavit of the first defendant sworn on 4 May 2020 (‘the Thompson affidavit’), the search warrant, and a facsimile cover sheet from Victoria Police to the Magistrates’ Court dated 4 May 2020. Victoria Police’s objection is to the inspection of the Thompson affidavit.
Applicable Principles – inspection of Magistrates’ Court file
Rule 42.13 of the Supreme Court (General Civil Procedure) Rules 2015 is applicable. It provides:
Documents and things in the custody of a court
(1)A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Prothonotary in writing accordingly, identifying the document or thing.
(2)If the document or thing is in the custody of the Court, the Prothonotary shall produce the document or thing—
(a)in Court or to any person authorised to take evidence in the proceeding, as required by the party; or
(b)as the Court directs.
(3)If the document or thing is in the custody of another court, the Prothonotary shall, unless the Court has otherwise ordered—
(a)request the other court to send the document or thing to the Prothonotary; and
(b)after receiving it, produce the document or thing—
(i)in Court or to any person authorised to take evidence in the proceeding as required by the party; or
(ii)as the Court directs.
I have previously outlined applicable principles on r 42.13 and reiterate them.
Rule 42.13 requires the Court itself to determine access. It differs from a subpoena application in that respect. The mechanism itself is different. Parties cause subpoenas to be issued and courts generally only consider whether they are allowed when an objection is made. Rule 42.13 requires the Court itself make an initial assessment. As Barrett J stated in respect of r 33.13 of the NSW Rules:
The procedure here is one under which the court itself decides whether access may be had in a particular case and for a particular purpose to a document or thing already in the court’s custody…
The decision as to whether to provide access to another court’s files pursuant to r 42.13 of the Rules is a discretionary one. It involves weighing the likelihood of the file disclosing anything of real utility against the interest in preserving the confidential and personal nature of documents contained in the file. Particular regard must be had to that fact where the parties to each proceeding differ. Other factors relevant to the discretion include the nature of the proceedings, including whether they are criminal or civil, whether there have been any suppression or confidentiality orders in place, whether there is statutory protection for the disclosure of information such as the identity of persons, the purpose for which the documents are sought and whether there is a confidentiality regime that will appropriately protect personal and confidential information. There is another factor which may also be relevant in some circumstances, and that is whether or not the information sought in the files can be accessed by other means. I refer, for instance, to sections 167 and 178 of the Evidence Act 2008, which are discussed further below.
I add the following for completeness. The question of whether particular documents are admissible is one for the trial judge.[9] Admissibility is not the test of whether the files of another Court may be inspected. It may however be a factor to consider in determining whether there is any real utility to inspecting the documents...[10]
[9]See Stephensen v The Salesian Society Inc & Ors; Easton v The Salesian Society Inc & Ors [2018] VSC 622.
[10]Stephensen v The Salesian Society Inc & Ors; Easton v The Salesian Society Inc & Ors (No 2) [2018] VSC 630 [15], [19]-[20] (citations omitted).
Section 465 of the Crimes Act 1958 provides:
Issue of search warrant by magistrate
(1)Any magistrate who is satisfied by the evidence on oath or by affirmation or affidavit of any police officer of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building (including any vehicle in that building), receptacle or place (including any vehicle on or in that place) or on or in a particular vehicle located in a public place—
(a) anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
(b)anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
(c) anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant—
may at any time issue a warrant authorizing some police officer or other person named therein to search such building receptacle, place or vehicle for any such thing and to seize and carry it before the Magistrates’ Court to be dealt with according to law.
(1B)A magistrate who issues a warrant under subsection (1), if satisfied on reasonable grounds by the evidence given under that subsection that the thing to which the warrant relates is also tainted property within the meaning of the Confiscation Act 1997, may, in that warrant, direct that the applicant hold or retain that thing as if it were tainted property seized under a warrant under section 79 of that Act as and from the date when that thing is no longer required for evidentiary purposes under this Act.
(2)Subject to this section the rules to be observed with regard to search warrants mentioned in the Magistrates’ Court Act 1989 shall extend and apply to warrants under this section.
(3)The provisions of this section shall be read and construed as in aid of and not in derogation of the provisions with regard to warrants to search contained in this or any other Act.
(4)The Governor in Council may make regulations prescribing the form of any warrant to be issued under this section and any such regulations shall be published in the Government Gazette and shall be laid before both Houses of Parliament within fourteen days after the making thereof if Parliament is then sitting, and if not then within fourteen days after the next meeting of Parliament. Court to be dealt with according to law.
…
In Cuvegen v Secretary to the Department of Education and Training[11] McDonald J considered authorities regarding access to admissible information before the decision‑maker in applications for judicial review:
An error is jurisdictional only if it is material, in the sense that it has deprived the applicant of the realistic possibility of a successful outcome. In Minister for Immigration v SZMTA (‘SZMTA’) the plurality stated that where ‘materiality is put in issue in an application for judicial review … it is a question of fact in respect of which the applicant for judicial review bears the onus of proof’. In MZAPC v Minister for Immigration and Border Protection (‘MZAPC’) the plurality concluded that the applicant in judicial review proceedings ‘unwaveringly’ bears the onus of proving materiality by admissible evidence on the balance of probabilities.
Materiality is a question of fact ‘to be determined by inferences drawn from evidence adduced on the application’. In SZMTA the plurality held that in order ‘to inform curial determination’ in relation to whether the relevant Tribunal’s decision ‘could realistically been different if the relevant breach had not occurred, evidence of the content of the document or information is relevant and admissible’. In MZAPC, the plurality noted that in applications ‘for judicial review of an administrative decision, the decision-making process in fact engaged in by the decision-maker will inevitably need to be proved by inferences drawn from admissible evidence to the extent that it is in controversy’.
[11][2021] VSC 524 [54]-[55] (citations omitted).
Mr Smith says the Magistrates’ Court file contains the Thompson affidavit. It goes directly to whether there were reasonable grounds for Victoria Police obtaining a warrant. In a criminal proceeding, he would be entitled to see the documents. He has no criminal record. It has a forensic purpose vital to this proceeding. The Court cannot determine whether there were reasonable grounds for issuing a warrant without seeing the Thompson affidavit.
Victoria Police says that the Magistrates’ Court file should not be produced because the affidavit in it is subject to public interest immunity. Further, that there are means other than r 42.13 by which Mr Smith may seek access to the file. For instance, in his summons filed on 15 July 2020, he seeks an order for Victoria Police to serve all affidavit material before the Magistrate.
Analysis
The Magistrates’ Court file may be produced in Court on the trial of this proceeding. I will also make orders directing that Mr Smith may inspect and copy the file, subject to payment of any fees pursuant to the Rules.
The Court will need to consider the Thompson affidavit in its determination of whether the Magistrate erred in law by issuing the warrant pursuant to s 465 of the Crimes Act 1958. This is not a case where there is a written ruling (or transcript) which sets out reasons. The Thompson affidavit appears to be the basis upon which the Magistrate’s decision was made. The parties will need to address this issue at trial. Victoria Police obviously already have the affidavit. Mr Smith does not. Accordingly, there is real utility in providing Mr Smith with inspection of the Magistrates’ Court file containing the affidavit. This is a sufficient ground to grant inspection. For clarity, I will add that there is legitimate forensic purpose for the Thompson affidavit for the same reasons.
Whilst Mr Smith has made a number of applications regarding access to the affidavit, they have yet to be fully ventilated. None have been determined. Determination of the issue now is consistent with the just, timely, efficient and cost-effective disposition of this issue.
In relation to issues of confidentiality, firstly, it is not evident on the file that there are any confidentiality or suppression orders restricting access. Nor was it submitted that the Magistrates’ Court had made such orders. Mr Smith’s application for a suppression order in this proceeding was successfully opposed by Victoria Police. Secondly, as discussed later below, much of the substance of the Thompson affidavit has already been disclosed in evidence filed in this proceeding, namely in the Nicholds affidavit.
Turning now to the public interest immunity claim made by Victoria Police. As will be discussed, it is disallowed. Accordingly, it is not a basis for declining to make orders for inspection of the file pursuant to r 42.13.
Applicable principles – public interest immunity claim
Victoria Police rely upon s 130 of the Evidence Act 2008. It provides:
Exclusion of evidence of matters of state
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2)The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.
(6)A reference in this section to a State includes a reference to a Territory.
In Madafferi v The Queen, the Court of Appeal held:[12]
The construction of s 130 is informed by the common law. In Ryan v State of Victoria, Tate JA recognised that there ‘is considerable support in the authorities for the view that the principles governing public interest immunity under s 130 of the Act reflect those applicable at common law; what differences exist are of no practical significance.’ In Attorney General (NSW) v Lipton, Basten JA stated that the balancing exercise was not to be constrained by unexpressed rules derived from the general law, however, he did so in the context of a request for documents for a sentence appeal where the respondent had pleaded guilty and in response to a submission that the court was constrained by a common law rule that where non-production was necessary to protect the identity of an informant, the only available exception was the public interest in an accused person properly defending themselves against conviction. In stating that the balancing exercise was not constrained in the manner contended for, like Tate JA, his Honour observed the same result might be expected on either approach.
[12][2021] VSCA 1 [31] (citations omitted).
In Ahmet v Chief Commissioner of Police (‘Ahmet’), the Court of Appeal stated:
The classification of public interest immunity claims as ‘class’ claims and ‘contents’ claims is recognised as a ‘rough but accepted’ division. In Commonwealth v Northern Land Council the High Court said the classification:
serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents...[13]
[13][2014] VSCA 265 [20].
Here, there is a contents claim made in respect of the affidavit on the Magistrates’ Court file. In Ahmet, the Court of Appeal stated the contents claim:
… required the Chief Commissioner to identify with some particularity the basis for his contention that the disclosure of the information contained in the subpoenaed documents would harm some aspect of the public interest. In State of Victoria v Brazel, the Court of Appeal said:
The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.[14]
[14]Ibid [22] (citations omitted).
In Ryan v State of Victoria (‘Ryan’),[15] the Court of Appeal applied Ahmet. In Ryan, the Court of Appeal referred to circumstances in Ahmet and I gratefully adopt that description. The primary judge:
... relied on general statements made in an affidavit by a Sergeant of Police within the disciplinary branch of Victoria Police as to the policy underlying non-disclosure, the nature of the document sought, and the likely impact of non-disclosure. It was emphasised that disclosure would reveal investigative methods, methods of intelligence gathering, information obtained by compulsory processes, confidential communications past internally. The evidence was that the disclosure would impede frank and thorough investigation of police complaints by inhibiting the open exchange of views and information within Victoria Police ...[16]
[15][2015] VSCA 353 [90]-[93].
[16]Ibid [91].
The appellant in Ahmet was successful. Adopting again the description of Ahmet given in Ryan:
Responding to the submission that the affidavit relied upon by the Chief Commissioner of Police failed to identify with any precision what aspect of the contents of the documents would harm the public interest upon disclosure, the Court referred again to Brazel. It stated:
In State of Victoria v Brazel this Court emphasised that the decision to be made on a claim for public interest immunity 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.
The Court accepted the submission that the statements made in the affidavit were of a general nature. It held that, in a ‘contents’ claim, the judge was obliged to inspect the subpoenaed documents personally to form a view as to whether any damage might result from their disclosure. To fail to do so inhibited the proper weighing of the merits of the competing claims...[17]
[17]Ibid [93]-[94] (citations omitted).
In Ryan, the Court of Appeal analysed a number of authorities, including the following.
In R v Young, Spigelman CJ was concerned to identify some limits on the notion of ‘public interest’ that gives rise to the immunity. He said:
The words ‘public interest immunity’ are sometimes treated as if they extended to any circumstance in which exclusion should be supported on the grounds of public policy — and in that sense involve a ‘public interest’. … The terminology of ‘public interest’ should not be permitted to extend the basis of the doctrine.
‘Public interest immunity’ is concerned with, and the terminology should be confined to, the conduct of governmental functions. Section 130 of the Evidence Act 1995 reflects this proposition by use of the formula: ‘that relates to matters of state’.
The ‘public interest’, to which this immunity refers, requires a dimension that is governmental in character. The references to ‘public interest’ in the frequently cited passages from the case law, should be so understood: eg, Sankey v Whitlam … Alister v The Queen. These passages did not intend to encompass every situation in which it could be said that some form of public policy could be served by non-disclosure. In my opinion, it is not correct to treat public interest immunity as if it were a ‘residual category’ of circumstances in which courts limit access to information on the basis of weighing the public interest in disclosure against any factor that can be described as a ‘public interest’. …
The references in the case law to the proposition that the categories of public interest are not closed, need to be similarly confined … Such references should be understood in the sense identified by Mason J in Australian National Airlines Commission v Commonwealth … His Honour referred to what was then still called ‘Crown privilege’ and added …:
‘… it would be an error to regard the categories of documents which attract privilege as necessarily closed. As time passes it is inevitable that new classes of documents important to the working of government will come into existence and that detriment to the public interest may occur in circumstances which cannot presently be foreseen.’ (Emphasis added)
Public interest immunity arises because of ‘the need to safeguard the proper functioning of the executive arm of government and of the public service’ (emphasis added), to use the formulation which Stephen J in Sankey v Whitlam … described as ‘the reasons customarily given’ for the immunity. This formulation was adopted by Mason CJ, Brennan J, Deane J, Dawson J, Gaudron J and McHugh J in Commonwealth v Northern Land Council … and described by their Honours as ‘the ordinary reasons supporting a claim for public service immunity’.
However, although Spigelman CJ focused upon the need to identify some boundaries on the immunity, and in particular to separate public from private interests, he accepted that the immunity was not confined to the higher levels of government or the ‘truly sensitive areas of executive responsibility’, a general limitation for which Ryan contended. Rather, he understood that it was the workings of government, including the workings of those who are responsible for the proper functioning of the executive government, the public service, which gives rise to the public interest that warrants protection. By extension, in my view it can be inferred that there is a public interest of the relevant kind in protecting the information or documents reflecting the workings or operations of those who are responsible for the governmental function of the maintenance of social peace and order, the police. Those operations include police methodology and tactics.
In R v Young Beazley JA commented on the significance of the public interest in social peace and order when she described the categories of class interest (state secrets, cabinet documents, and police informers) while acknowledging that the rationale for each type of public interest immunity claimed had to be properly identified. She said:
The overarching public interest which requires as a matter of law that such information be protected has been described as ‘the maintenance of social peace and order.’
She went on to say:
The public interest in maintaining social peace and order has been said to require protection of any information about continuing inquiries which, if disclosed, would be useful to those who organise criminal activities, may impede police in the pursuit of criminal activity or may prejudice future police activities: see Attorney-General (NSW) v Stuart … per Hunt CJ at CL and the cases there cited.
Charles JA emphasised that in D v National Society for the Protection of Cruelty to Children the House of Lords ‘rejected the view that public interest as a ground for non-disclosure of documents or information was confined to the effective functioning of departments or organs of central government’. He accepted the need for a governmental interest but emphasised that the protection of an informer’s identity was in substance governmental as it ‘is, in one sense, very much related to a central government function … [because] the administration of justice … is a crucially important aspect of the maintenance of social peace and order’. He relied upon the recognition by Lord Simon, mentioned above, that ‘the public interest in the administration of justice is one facet only of a larger public interest — namely, the maintenance of … peace’. This reflects the emphasis given by Beazley JA in R v Young, referred to above, to the overarching public interest in the maintenance of social peace and order.[18]
[18]Ibid [104]-[107], [117] (citations omitted)(emphasis in original).
I adopt the following principles given by Tate JA in Ryan.
In my view, it is necessary to be mindful of the comments of Spigelman CJ that the ‘public interest’ in this context is not intended to subsume any public policy that might be served by non-disclosure. Nevertheless, it is also important to recognise that there is a public interest in the safeguarding of the proper functioning of the police in their control of public gatherings, including lawful protests, without which there are real risks to the safety and protection of individuals who participate in those gatherings, or who find themselves caught up in them, and to the police officers themselves. If information on police methods of crowd control were released into the public domain in a court of law those methods could be undermined and subverted, including by those intent on committing criminal offences. These are the matters which underpin the recognition of police methods of crowd control as a ‘matter of state’ within the context of s 130(4). Whether, in any individual case, the balance lies in favour of disclosure or non-disclosure under s 130(1) will depend upon the balancing exercise to be undertaken in the circumstances of the case in accordance with the factors in s 130(5). However, in my view, it would be wrong not to recognise that the documents in dispute ‘relate to matters of state’ and thus give rise to a public interest in their protection from release to be balanced against factors in favour of disclosure.
I consider that it would be wrong to exclude police methods from the statutory immunity, when Eastman; Young v Quin; and Skrijel v Mengler demonstrate that there is a similar underlying public interest in their protection from disclosure as that supporting the exclusion from evidence of the identity of informers, namely, that release would hinder the police ‘in their duty of preventing and detecting crime’. There is no indication that such exclusion is what the legislature intended. Nor can support be gained for that exclusion by the remarks of Warren CJ and Maxwell P in Royal Women’s Hospital, especially where the documents are assessed according to their content and not as a class, as required in Conway v Rimmer and Ahmet v Chief Commissioner of Police. As observed in Conway v Rimmer, the police, although they ‘are not servants of the Crown and they do not take orders from the Government … they are carrying out an essential function of Government’.[19]
[19]Ibid [118]-[119] (citations omitted).
Public interest immunity claim
Turning now to s 130 of the Evidence Act. It will only apply if the Thompson affidavit ‘relates to matters of state’. Section 130(4) provides a non-exclusive list of circumstances that would ‘relate to matters of state’. This includes sub-s (c) ‘prejudice the prevention, investigation or prosecution of an offence’. I accept the Thompson affidavit relates to ‘matters of state’. The issue here is the competing public interests. Mr Smith says it is in the public interest to allow him to inspect the affidavit. Victoria Police say that it is not. It says that production of the affidavit will result in disclosure of Victoria Police methodology and confidential information.
Section 130(5) provides a non-exclusive list of factors to be taken into account for the purpose of s 130(1). There are four factors which relate to civil proceedings. I will now address these factors and outline each party’s key submissions in relation to the factors.
Section 130(5)(a) importance of document in the proceeding
Mr Smith says the issue at the heart of this proceeding is that the warrant should never have been issued in the first place. He is seeking a declaration that it was unlawful. The affidavit is the only evidence relied upon for the issuing of the warrant. He says it clearly has a forensic purpose in this proceeding. Mr Smith contends that the issue of whether there was a reasonable ground to issue the warrant cannot be determined without seeing the affidavit. He says that he cannot properly litigate his case without seeing the affidavit.
Victoria Police says the proceeding is nugatory. There is no ongoing criminal proceeding against Mr Smith. They say the documents seized pursuant to the search warrant have been returned to Mr Smith. Victoria Police note that Mr Smith claims that the Magistrate was misled by them, however there is an absence of any such evidence before the Court. They say that he needs to point to some evidence of bad faith to compel production.
Analysis
The affidavit is of central importance in the proceeding. In paragraph 1 of Mr Smith’s amended originating motion, he seeks judicial review of the decision to grant the search warrant on the basis it:
…should not have been granted and should have been refused as it was misconceived. It did not demonstrate “reasonable grounds” to support an order under s 465 of the Crimes Act 1958.”
I reject Victoria Police’s submission that the proceeding is nugatory. The proceeding is currently on foot. Mr Smith is seeking, amongst other things, a declaration that the search warrant issued was unlawful. That relief is not dependent on whether or not there are criminal charges pending against him. As to Mr Smith being required to show evidence of bad faith, that begs the question here. Mr Smith needs to inspect the affidavit to understand the basis of the Magistrate’s decision.
As a matter of completeness, I note that Victoria Police has foreshadowed that it may make a summary dismissal application. That issue ought not be determined in this ruling.
Section 130(5)(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding
It is common ground that the Thompson affidavit relates to Victoria Police’s application for a warrant and that Mr Smith wishes to inspect the document in this proceeding, which is a civil (judicial review) proceeding.
Section 130(5)(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication
Mr Smith says the public have a right to know why the police are attaining warrants. He says that the document must be in the public interest as it relates to the administration of justice.[20] Mr Smith says that Victoria Police’s submission that the affidavit is subject to secrecy is in contradiction with its opposition to his suppression application. The proceeding was publicly reported in the newspaper, causing him much harm.[21] The affidavit is not a sensitive document and there is no basis for claiming it is.
[20]Sankey v Whitlam (1978) 142 CLR 1.
[21]Exhibit ‘ATT-2’, The Age article titled ‘Australia’s Jack Ryan’ under investigation to kill police prosecutor dated 26 July 2020, to the second Smith affidavit.
Victoria Police says the search warrant affidavit contains police methodology. The disclosure would risk prejudicing the proper function of Victoria Police. There is an inherent interest in preserving both the confidentiality of the substance of the affidavit and how such affidavits are crafted. The factors in favour of secrecy of the document outweigh those permitting inspection. Paragraphs 55 to 58 of the Nicholds affidavit follow.
I make a claim of public interest immunity (PII) in relation to the affidavit provided to Magistrate Bate on 5 May 2020, in support of the application for a search warrant at the plaintiff’s residential address.
A PII claim necessary for the following reasons:
a.Protect the police methodology of matters that are deposed in an affidavit in support for a search warrant. Disclosure of the affidavit would reveal particulars of, or details concerning police methodology and;
b.The affidavit contains confidential police information.
I consider that the affidavit cannot be disclosed to the plaintiff without causing damage to the public interest, as the disclosure will reveal police methodology.
This disclosure of information contained in the affidavit would reduce the effectiveness of lawful methods used by Police in the investigation and detection of crime. The production of the affidavit relied on in support of the application for a search warrant will prejudice the prevention, investigation or prosecution of an offence.
Analysis
Having read the affidavit, I cannot identify any particular police methodology which could be regarded as confidential. I reject the suggestion that the form of the affidavit (how it is drafted) is itself is a confidential matter which would reveal police methodology disclosed. The assertion that disclosure of information contained in the affidavit would reduce the effectiveness of lawful methods used by police investigation and detection of crime is vague. I do not accept it.
I am reinforced in this analysis by the fact that, as discussed further below, much of the substance of the affidavit has already been disclosed in the Nicholds affidavit.
Given the findings above, it is unnecessary to address the means available to limit production of the affidavit.
Section 130(5)(e) whether the substance of the information or document has already been published
There were no additional submissions in respect of this issue.
Analysis
The affidavit has not been disclosed to Mr Smith. However, the substance of the information in the affidavit has already been disclosed in this proceeding in the Nicholds affidavit. It is contained on the Court file. I refer particularly to paragraphs 7–24 of that affidavit. There are references to other matters which would necessarily involve communications with Mr Smith.[22] I infer he is already aware of such matters.
[22]The Thompson affidavit [9], [10], [17] and [18].
Balancing the factors above, I do not accept that the public interest in protecting police methodology and information is outweighed by the public interest in disclosure of the affidavit. The public interest immunity claim is disallowed.
Conclusion
Mr Smith will be able to inspect and copy the Thompson affidavit.
There are a number of other applications in this proceeding. I will list this matter for mention and orders will be made to facilitate the just, timely, efficient and cost effective progress of this proceeding.
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