State of Victoria v Nine Network

DelRoyal

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5991 of 2007

STATE OF VICTORIA AND ANOR	Plaintiffs
v
NINE NETWORK	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4, 5, 6, 7, 10 SEPTEMBER 2007
DATE OF JUDGMENT:	29 NOVEMBER 2007
CASE MAY BE CITED AS:	STATE OF VICTORIA v NINE NETWORK
MEDIUM NEUTRAL CITATION:	[2007] VSC 431

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Confidential documents of Corrections Victoria obtained by the Defendant – injunctive relief sought to restrain publication – right to restrain publication dependent on public interest – net public interest affected by competing considerations – question of fact with respect to each document – public interest in free speech with respect to governmental action and specifically in ventilating questions of misconduct or inaction in administration of criminal justice system - outweighed in some instances by public interest in the security and proper administration of prisons.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	J Ruskin QC with D Masel	Victorian Government Solicitors’ Office
For the Second Plaintiff	D Beach SC with D Siemensma	Victorian Government Solicitors’ Office
For the Defendant	P Collinson SC with D Klempfner	Holding Redlich Lawyers

HIS HONOUR:

Introduction

In mid 2006, ten separate administrative offices of Corrections Victoria were moved from their then locations to a new facility. Despite the careful formulation of appropriate protocols, certain files of Corrections Victoria relating to events in correctional facilities became mislaid in the course of the relocation.

In 2007, the mislaid files came into the possession of the defendant. The defendant conducts the business of a television network and formed the view that it wished to publish portions of the documents. Upon realising that the files contained documentation of a potentially sensitive and apparently confidential nature, however, the defendant acted entirely properly and advised the first plaintiff (“Victoria”) of its possession of the documents and sought Victoria’s response to their publication.

Officers of the Victorian Department of Justice then reviewed the documents and identified some as public and others as confidential.

It appears that this process generated some dispute as to what should be regarded as confidential. Victoria then obtained interim orders from this Court restraining publication of the material in respect of which it claimed confidentiality.

The parties then joined issue by way of this proceeding as to Victoria’s right to restrain publication of the documents.

In the course both of interlocutory steps and of the hearing before me, there has been further refinement of the position of the parties. First, Victoria has more precisely defined the documents in respect of which it claims confidentiality. Secondly, the defendant by a process of progressive redaction has sought to confine the dispute with respect to such documents to edited components of certain documents only.

The second plaintiff asserts confidentiality with respect to one of the documents in issue being a report prepared for the benefit of the Western Australian Department of Justice. In respect of that document the defendant seeks only to publish a statement as to the character of its contents, but not to further publish the content of the document. It is this proposed statement which remains in issue.

In broad terms the documents relate to the following categories of subject matter:

(a)The history of a particular prisoner who has alleged she was the subject of sexual misconduct by a prison officer while in custody;

(b) The history of the departmental response to this allegation;
(c)The history of allegations concerning a prison officer’s involvement with an ex-prisoner after the release of the prisoner from custody and related issues of alleged similar impropriety;

(d) The history of the Department’s response to these allegations;
(e)The departmental investigation into the suicide of a prisoner whilst in custody;
(f)A report prepared for the Western Australian Department of Justice by officers of the Victorian Department of Justice reviewing security at a correctional facility in Western Australia.

The original documents in issue have been returned to Victoria, but copies have been retained by the defendant.

The plaintiffs claim:

(a)Permanent injunctions restraining the dissemination and publication of the confidential documents;
(b)Declarations that the confidential documents and the information in them is confidential to Victoria; and in one instance Western Australia; and
(c)Orders for the delivery up of all copies of the documents and notes of the contents thereof.

The plaintiffs’ claim was supported by evidence from a series of witnesses, directed to demonstrating that the documents in issue, comprise matters the disclosure of which would adversely affect the public interest in a series of respects.

It was ultimately submitted that the evidence disclosed the following public interests:

(a)the public interest in the maintenance of confidentiality over private information, including but not limited to health records;
(b)the public interest in the good order, management and dynamic security of prisons;
(c)the public interest in not compromising:
(i)the security and wellbeing of individual prisoners and ex-prisoners;
(ii)the wellbeing of prisoners’ families;
(iii)the privacy of prison officers;

(d)the public interest in minimising the incidence of deaths in correctional custody;
(e)the public interest in the orderly coronial investigation process; and
(f)the public interest in the maintenance of candour of confidential communications between the States.

The defence conversely asserts:

(a)the public interest in freedom of information concerning governmental activity generally;
(b)the public interest in knowing of matters occurring in prisons and in particular misconduct within prisons;
(c)the public interest in knowing of the governmental response or lack of response to incidents involving alleged or actual misconduct within prisons;
(d)the public interest in protecting prisoners from abuse by prison staff;
(e)the public interest in the good order and management of prisons generally;
(f)the public interest in reducing the incidence of suicide in prisons;
(g)the public interest in maintaining an appropriate level of security in prisons.

The fact that the documents have passed to a third party does not determine their confidentiality. In Johns v Australian Securities Commission[1] Gaudron J stated:

The jurisdiction to grant equitable relief with respect to confidential information is not in doubt. Nor is it in doubt that the basis for the jurisdiction lies in an obligation of conscience. The question whether there is an obligation of that kind ordinarily depends on the "circumstances in or through which the information was communicated or obtained."[2] However, other circumstances may be relevant when it is claimed that persons who were not parties to the original confidence are bound by it or come under a duty with respect to the information involved.
It has been held, both in Australia and in the United Kingdom, that a third person who comes by information innocently may be restrained from making use of it once he or she learns that it was obtained in circumstances involving a breach of confidence.[3] And it was conceded by counsel for the 6th and 7th respondents that the law in this regard is as stated by Lord Denning MR in Fraser v Evans[4], namely, that "(e)ven if (a recipient of information) comes by it innocently, nevertheless once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence." The law of confidence has not developed to the point of identifying in a definitive or comprehensive way the matters which determine whether a duty of confidence has devolved onto third parties.[5] However, the question whether there is or should be a duty on third parties must depend, at least in part, on the extent to which the information in question is generally known or available.[6]

[1](1992-1993) 178 CLR 408 at 459.

[2]Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414 at 438.

[3]See for e.g, Fraser v Evans [1969] 1 QB 349 at 361; Butler v Board of Trade [1971] Ch 680 at 690; Foster v Mountford and Rigby Ltd (1976) 14 ALR 71 at 75; G v Day [1982] 1 NSWLR 24 at 35; Wheatley v Bell [1982] 2 NSWLR 544 at 550.

[4][1969] 1 QB at 361.

[5]See Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (3rd ed, 1992) at 4122.

[6]See also ABC v Lenah Game Meats Pty Ltd 208 CLR 199, 224 [34](Gleeson CJ).

I am satisfied that each of the documents which remain in issue in this proceeding was produced in circumstances where the maker intended it to remain confidential. I am further satisfied that the documents which have found their way into the defendant’s hands were intended to be kept in confidence by the Department of Justice. Such documents have only come into the hands of the defendant as the result of human error by officers of the Department of Justice or contractors acting for or on behalf of the Department.[7]
[7]Although the defence pleads that the documents were relevantly ‘abandoned’ this proposition was not pursued at trial.

The confidential character of the information contained in the documents may still be in issue, however, by reason of the matter last referred to by Gaudron J. In some instances it is the defendant’s case that the information contained in the documents is already substantially within the public domain. The question arises with respect to these documents as to whether the information “is so generally accessible that, in all the circumstances, it cannot be regarded as confidential.”[8]
[8]Attorney-General v Guardian Newspaper (No. 2) (1990) 1 AC 109 at 282 (the Spycatcher case); and see generally the careful discussion of relevant authority by Kellam J in Australian Football League v the Age & Ors [2006] 15 VR 419 at [37]-[47], 427-430.

Putting this issue to one side, it was not disputed that the principles otherwise critically governing the present case were stated by Mason J in the Commonwealth of Australia v John Fairfax & Sons Ltd (“the John Fairfax case”).[9] It was accepted that even if the plaintiffs could show that the information contained in the documents in issue was of a confidential nature its publication should not be restrained unless it is in the public interest to do so. The relevant principles were stated by Mason J in the John Fairfax case as follows:

However, the plaintiff must show, not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be "an unauthorised use of that information to the detriment of the party communicating it."[10] The question then, when the executive government seeks the protection given by equity, is: What detriment does it need to show?
The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.
Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.
The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.

[9](1980) 147 CLR 39 at 50-53.

[10]Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47.

His Honour went on to approve the statement of Lord Widgery LCJ in Attorney-General v Jonathan Cape Ltd:[11]

The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.

[11][1976] QB 752.

The statement of principle by Mason J above explicitly acknowledges the public interest in free speech with respect to the actions of government generally as an incident of a democratic society.

The significance of that public interest may also be regarded as having been affirmed in this State by freedom of information legislation.[12]
[12]Cf Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22 at [46]-[48] (Maxwell P).

I accept that, as the Defendant submits, there is both a general underlying interest in the free publication of information bearing on governmental action and that there may be a special public interest arising with respect to information concerning activities of Government which bear directly on the liberty of the subject.

Allegations of misconduct or inaction in the administration of the criminal justice system raise questions of particular sensitivity. In Australian Broadcasting Corporation v O’Neill[13] Gleeson CJ and Crennan J stated:

… In our society allegations of misconduct are sometimes made against the police and public officials. … It may well be in the public interest that inaction on the part of the police and prosecuting authorities be called publicly into question. It is certainly in the public interest that it is open to be called into question.

Their Honours subsequently affirmed the principle that:
The public interest in free speech goes beyond the public benefit that may be associated with a particular communication.[14]

[13](2006) 227 CLR 57 at [31], 72 (Gleeson CJ and Crennan J).

[14]at [31], 72.

The public interest in free speech is recognised despite the obvious fact that free speech may cause collateral damage to society. In Australian Broadcasting Corporation v O’Neill[15] Gummow and Hayne JJ emphasised that the rules with which they were concerned in respect of the prior restraint of allegedly defamatory publication, were the product of striking a particular balance between competing interests:

The stance taken by the courts against prior restraint was not adopted in innocence of the malign influence, on occasion, which may be exerted by media of mass communication. Indeed, in R v Shipley[16], Lord Mansfield, after speaking of the liberty to print without previous licence, continued:
“The licentiousness of the press is Pandora's Box, the source of every evil. Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.”

As in other fields[17], the policy of the law struck here represents a particular balance between competing interests. With respect to tortious liability to be determined at trial, that balance for this case is struck by statute, the 1957 Act.

[15]at [87]-[88].

[16](1784) 4 Doug KB 73 at 170; 99 ER 774 at 824.

[17]See Cattanach v Melchior (2003) 215 CLR 1 at 32-35, [70]-[75].

In R v Home Secretary, ex parte Simms[18] a prison authority denied a request by journalists for access to prisoners convicted of murder, unless the journalists signed undertakings not to use information obtained on visits for professional purposes. The prisoners’ applications for leave to appeal against conviction had been refused by the Court of Appeal but they continued to protest their innocence. They were visited in prison by journalists who had befriended them and were interested in publicising their stories. The decision to refuse access to the prisoners, save on the basis set out above, was set aside. Lord Steyn weighed the risk to discipline and order in prisons against freedom of expression supporting access to justice for prisoners:

The two new affidavits make a case that any oral interviews between prisoners and journalists will tend to disrupt discipline and order in prisons. In my view these affidavits do not take sufficient account of the limited nature of the applicants’ claims, viz to have interviews for the purpose of obtaining a thorough investigation of their cases as a first step to possibly gaining access through the Criminal Cases Review Commission to the Court of Appeal (Criminal Division). The affidavits do not refute the case that until 1995 such interviews enabled a substantial number of miscarriages to be undone. Moreover they do not establish that interviews confined to limited purposes caused disruption to prison life. In any event the affidavits do not establish a case of pressing need which might prevail over the prisoners’ attempt to gain access to justice: see the decision of the Court of Appeal in Reg. v Secretary of State for the Home Department, ex parte Leech,[19] the correctness of which was expressly accepted by counsel for the Home Secretary.[20]

[18][2002] AC 115.

[19](1994) QB 198.

[20]at 129.

The general public interest to which I have referred requires that the onus is upon the plaintiffs to satisfy the Court that the public interest demands non-disclosure.[21]
[21]It follows that it is not for the defendant to raise a “public interest” defence as such.

In the present case the plaintiffs assert probable prejudice to the workings of government and probable prejudice to individuals belonging to classes affected by the workings of government, whose interest in confidential material it is in the public interest to protect.

The plaintiffs and the defendant thus rely upon competing considerations of the public interest. The resolution of the appropriate balance may not be easy. As Mason J stated in the John Fairfax case:[22]

There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public’s interest in knowing and expressing its opinion, outweighs the need to protect confidentiality.

[22]See above [16].

The notion of net public interest or net community benefit as a determinant of decision making is not unique to this area of the law. Thus, in a criminal trial the public interest may require the exclusion of evidence obtained at a price which is unacceptable having regard to prevailing community standards.[23]
[23]Cf R v Swaffield & Pavic (1998) 192 CLR 159 at 198, [79].

Speaking of public interest immunity with respect to the production of documents in evidence in civil litigation, Gibbs ACJ stated in Sankey v Whitlam:[24]

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer as follows:
“There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. [footnotes omitted]

[24](1978) 142 CLR 1 at 38; as cited in Royal Women’s Hospital v Medical Practitioners Board of Victoria [2005] VSC 225 at [106].

In Victoria v Seal Rocks Pty Ltd[25] Ormiston JA (with whom Phillips and Buchanan JJA agreed) stated: [26]

In my opinion, therefore, public interest immunity in a document or other communication is a right by way of an immunity or a privilege which enures in the body politic and indeed in the nation (or relevant polity) as a whole, and not merely in the executive, being designed to protect the operation of the instruments of government at the highest level and for the benefit of the public in general, subject only to a court's reaching a conclusion to the contrary on sound grounds that no other public interest, especially in the administration of justice, should prevail in the particular circumstances.

[25](2001) 3 VR 1 at 6-7 [17].

[26](2001) 3 VR 1 at 6-7.

These principles were applied in the Royal Women’s Hospital case, [27] a decision which highlighted the distinction between the public interest in achieving objects of public policy and the public interest arising from the need to ensure the effective functioning of the executive government and the public service. That distinction is potentially relevant to the process of the weighing up of the public interest in the present case. Both kinds of consideration have been raised by the plaintiffs.
[27]Royal Women’s Hospital v Medical Practitioners Board (2006) 15 VR 22 at [25]-[34] (Warren CJ) and at [52]-[55] (Maxwell P).

Public interest immunity is also invoked by the law governing the exclusion of evidence of the identity of police informers. In the Royal Women’s Hospital case Charles JA recorded:[28]

Public interest immunity is similarly invoked when objection is made by the Director of Public Prosecutions or police officers to the production of documents or the giving of evidence which will reveal the identity of a police informer. The identity of an informer has been protected against disclosure in order to prevent damage to the administration of criminal justice since Eyre CJ laid down the rule in Thomas Hardy’s case[29] in 1794. The rule was reaffirmed in 1846 in Attorney-General v. Briant[30]. In D v. NSPCC, Lord Diplock[31] said that by the time of Marks v. Dreyfus[32] this had “hardened into a rule of law.

[28]at [102] 46.

[29]24 St. Tr. 200 at 816.

[30]15 M & W 169 at 184-5 (Pollock, C.B.)

[31][1978] AC 170 at 218.

[32](1890) 25 QBD 494 at 498, 500.

Maxwell P observed:[33]

What explains the successive extensions of the informer immunity[34] is the recognition that the very function which an informer performs means that information about the informer’s identity and whereabouts will almost always need to be immune from disclosure, in order both to protect the individual and to encourage the provision of such information in the future. This remains true whether the informer is assisting police, or a child protection agency, or the Gaming Board. The same exigencies have been held to override the requirements of natural justice, or to rob them of content, where adverse information has been provided to a decision-maker by an informer.[35]

[33]at 34 ,[50].

[34]Referred to further in the judgment of Charles JA at [102]–[107].

[35]See Aronson, Dyer and Groves, Judicial Review of Administrative Action (3^rd ed, 2004) at 510-11.

The operational rationale postulated with respect to the preservation of the confidentiality of police informers is closely akin to that claimed for the confidentiality of aspects of the information in issue in this proceeding.

In D v The National Society for the Prevention of Cruelty to Children[36] Lord Simon articulated the public interests that are balanced in the application of the principle.

Then the law proceeds to recognise that the public interest in the administration of justice is one facet only of a larger public interest - namely, the maintenance of the Queen's peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be divulged.[37] The law therefore recognises here another class of relevant evidence which may - indeed, must - be withheld from forensic investigation - namely, sources of police information.[38] Here, however, the law adds a rider. The public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial:[39] It would appear that the balance of public interest has been struck, both in the general rule and in its rider, in such a way as to conduce to the general advantage of society, with the public interest in the administration of justice as potent but not exclusive.
I cannot leave this particular class of relevant evidence withheld from the court without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as of one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public advantage lies in generally respecting it.

[36][1978] AC 171 at 232, [1977] 1 All ER 589, [1977] 2 WLR 201 at 220.

[37]See Lord Reid in Conway v Rimmer[1968] AC 910 at 953G-954A.

[38]Rex v Hardy (1794) 24 St. Tr. 199 at 808; Hennessy v Wright 21 QBD 509 at 519; Marks v Beyfus 25 QBD 494.

[39]See the citations in Reg v Lewes Justices, Ex parte Secretary of State for the Home Department [1973] AC 388 at 408A.

The making of suppression orders pursuant to s.18 of the Supreme Court Act 1986 may also involve balancing competing considerations of the public interest.

In BK v ADB[40] Nettle J stated with respect to an application for the anonymisation of parties to a proceeding:

Courts at the highest level have stressed the fundamental importance of openness in the administration of justice and thus it is the ordinary rule of this court, as with other courts of this country, that proceedings shall be conducted publicly and in open view. That rule has been said to have the virtue that proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses might flourish undetected. It has been said also that the public administration of justice tends to maintain confidence in the integrity and independence of the courts and that the fact that courts of law are held openly and not in secret is an essential aspect of their character.[41]
Plainly, however, the rule requiring open justice is not absolute and there are exceptions to it. As it was put by Kirby P in John Fairfax Group Pty Ltd (Receivers and Managers appointed) and Anor v Local Court of New South Wales and Ors[42], a common justification for the special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case, as for example, by vindicating the activities of the blackmailer, or discourage its attainment in cases generally, as by frightening off blackmail victims or informers, or would derogate from even more urgent considerations of public interest, as by endangering national security, the rule of openness must be modified to meet the exigencies of the particular case.

[40][2003] VSC 129 at [7]-[8].

[41]See Russell v Russell (1976) 134 CLR 495 at 520 (Gibbs J); David Syme & Co v General Motors Holden’s Ltd [1984] 2 NSWLR 294 at 300 (Street CJ); and Bromfield, ex-parte West, Australian Newspapers Limited (1991) 6 WAR 153 at 164 (Malcolm CJ).

[42](1992) 26 NSWLR 131 at 141.

In each of the areas to which I have referred, the balancing of the public interest may plainly involve questions of fact and degree.

I accept that in the present case the appropriate balance of the public interest may be achievable by permitting parts of a document to be disclosed. This is the necessary concomitant of the principle referred to at [17] above, that the restrictions imposed should not go beyond the strict requirement of public need.

The plaintiffs may or may not be able to discharge the onus cast upon them with respect to a document either wholly or in part. [43]
[43]Mr Delphine, the first witness called for Victoria, agreed in principle that redaction could be a very good way of compromising between his concerns about the inappropriate disclosure of particular information, such as the identities of prison officers, and the public interest in ensuring that there is open accountability for the conduct of the prison system.

Nevertheless, the process of redaction carries with it the risk of confusion of the medium with the message. It is the confidential information within the documents which the plaintiff States seek to protect. That confidentiality will not be protected if the redacted documents are published within a context of reference, which is derived from the redacted portions of the document of which the defendant has had knowledge. If this were to occur the defendant would in truth be using the redacted portions of the document, when publishing the terms of the unredacted portions.

I respectfully agree with the observations of Ashley J in Falconer v ABC:[44]

In my opinion, where confidentiality attaches to information such that equity would prevent its unauthorised disclosure, equity may also protect that information from disclosure by means of the use of non confidential material. Particularly that should be so where the use of that material produces, as its inevitable outcome, not by some unintended sidewind, the means whereby the confidentiality of information may be breached. If equity did not give protection in such circumstances, the very thing that equity seeks to prevent would be effectively countenanced. Where equity has been cautious in saying, even where there has been some disclosure of confidential information, that this will destroy the protection which equity gives such material, there appears to me to be a stronger case again for restraining the use of non confidential information which may well breach the confidentiality of information which has been otherwise carefully protected.[45]
[44](1992) VR 662 at 669.
[45]See also British American Tobacco Australia Ltd v Peter Gordon & Anor (2007) NSWSC 230 at [23]-[29] (Brereton J).

The Evidence

Before turning to the documents themselves, it is necessary to summarise the chief elements of the evidence called with respect to them. Victoria first called evidence from Mr Paul Delphine who is currently the Director, Business Environment and Business Sustainability of the Department of Justice. He has worked in the prison system for 28 years and has performed a range of senior management roles within the that system. He described the circumstances in which the documents became mislaid, and summarised the nature of those documents. He expressed the opinion based on his long experience, that the documents identified by him as confidential were extremely sensitive, in that they relate to the personal affairs of prisoners and prison staff and further relate to the proper and safe management of prisoners. He further detailed particular concerns relating to individual documents.

In the course of cross-examination, he freely conceded the public interest in seeking to ensure accountability in the administration of prisons, through access to confidential information, insofar as such access does not otherwise compromise the public interest in ensuring the proper operation of the correctional system.

He expressed concern that the disclosure of the process of internal review of contentious matters, may prejudice co-operation with future internal reviews by both prisoners and staff. Based on his experience both prisoners and staff are more likely to give information if their confidentiality is respected. In part this is because within prisons, public co-operation may give rise to issues of personal safety.

In his view the Corrections Act 1986 (“the Corrections Act”) clearly articulates an appropriate regime of secrecy for prison-related matters, which respects privacy and other concerns.

The problem of recidivism means that ex-prisoners cannot be assumed to have escaped future personal risk within the prison system simply by reason of the fact that they are released at a particular time.

He accepts that some of the documents may be embarrassing to Corrections Victoria. He defends his own response to certain events referred to in the documents.

He agrees that allegations of sexual impropriety by prison officers within a prison, raise issues of particular public interest.

When the first allegation of sexual contact involved in what I shall call the “unlocked cell incident”[46] was made, the allegation was one of consensual contact. Nevertheless Mr Delphine referred the matter to Victoria Police immediately for investigation.
[46]See further below at [82].

He accepts that the subsequent investigation by the Corrections Inspectorate resulted in criticism of the manner in which information concerning the incident was passed up the chain of command or “information hierarchy” within Corrections Victoria. He takes the view that these criticisms were made with the benefit of hindsight. He agrees that he participated personally in the hierarchy of information which was criticised.

There is a conflict as to the nature of the initial reporting by a Mr Johns with respect to the unlocked cell incident to those in the hierarchy above him. Mr Johns’ account of what was said is at odds with that of Mr Delphine, Mr Wise and Mr Money being the persons to whom he reported.

Mr Delphine elaborated further specific concerns about particular documents, a number of which led to the defendant proposing further redaction.

He reinforced his evidence that prison officers were sensitive to having their names described in the press. He gave evidence of industrial problems as a result of such identification in the past.

He expressed the view that the Department had an obligation to seek to restrain publication of documents which it would not have released deliberately, having regard to its privacy obligations.

He emphasised that prisoners are extremely adept at finding ways of manipulating any system, any process and any person. The release of information should not facilitate such potential manipulation.

Prisoners are also unlikely to freely co-operate with police investigations. On the other hand, Corrections Victoria needs the co-operation of the police to implement covert surveillance and investigation. A co-operative approach is necessary for effective investigation.

Helen Kathryn Versey is the Privacy Commissioner of Victoria. She gave evidence with respect to the operation of the Information Privacy Act 2000 and identified certain documents in issue in this case as containing personal and sensitive information within the meaning of that Act. She expressed the view that such information would ordinarily be protected under that Act and that the Department of Justice should endeavour to contain the effect of any breaches of the Act involved in the handling of the material. She gave evidence of a systems review which had been undertaken, seeking to ensure that documents of the kind here in issue would not be mishandled in future.

In cross-examination, Ms Versey accepted that the provisions of the Information Privacy Act were subject to those of the Freedom of Information Act 1984. She accepted that the Information Privacy Act itself seeks to balance the public interest in the free flow of information and the public interest in protecting the privacy of personal information in the public sector. She accepted that particular cases may give rise to a conflict between these public interests.

Kelvin John Anderson is the Commissioner of Corrections Victoria, with statutory duties pursuant to s.8A of the Corrections Act. He has 23 years of experience in corrections, including working both in the public sector and as the director of two privately operated prisons. He supported the suppression of information that would reveal:

(a)confidential personal details of prison staff, prisoners or official prison visitors;
(b)confidential matters affecting prison security; and
(c)confidential prison intelligence getting procedures, strategies and sources.

He stated that the maintenance of security and good order in a prison system and the keeping of the peace are core functions of the State itself and the public service. He further stated:

Without adequate security, the safety of the community, and of prisoners, cannot be guaranteed, and symptoms of disorder become real. In my experience, if prisoners are living in an environment that does not feel safe, they will respond in ways that escalate the dangers rather than diminish them. This could be exhibited by increased levels of self-preservation, increased ‘power groups’ violent and destructive behaviour (sometimes to gain alternative placements), increased trafficking to buy safety, and increased motivation to escape. When the symptoms are prominent, staff become defensive and the situation may escalate again. In my opinion, the very fabric of prison security is at risk where either static or dynamic security are compromised.

Mr Anderson emphasised that prisons are a unique and dangerous place to work, that prison officers are dependent upon each other, and that participation in confidential review and investigation processes is important and must not be discouraged. Likewise, the anonymity of informants requires protection if they are to be protected as individuals and the flow of information from such sources is to be maintained.

In cross-examination, Mr Anderson agreed that he had received input from other senior staff members in preparing the affidavit comprising his evidence in chief. He agreed that the handling of the unlocked cell incident was the subject matter of a number of criticisms by the Corrections Inspectorate, and that he was part of the hierarchy of information handling which was the subject of criticism. With hindsight, the passage of information through that hierarchy was inadequate, and is a subject of embarrassment for Corrections Victoria. Changes have been introduced to the operation of the prison system arising out of the criticisms of the Inspectorate.

He agreed that the initial daily briefing given with respect to the unlocked cell incident was “pathetic”. He agreed that the elements of the unlocked cell incident made it operationally serious, damaging politically, and of great interest to the media.

Mr Anderson further gave evidence of risks to the public interest associated with particular documents.

He ultimately emphasised the importance of comprehensive intelligence gathering to prison security and the necessity of maintaining confidentiality in order to maximise the provision of such intelligence.

Dr Michael Epstein, a clinical psychiatrist with very extensive experience in the prison system, gave evidence of an opinion formed on relevant papers (including medical records) that the prisoner involved in the unlocked cell incident has a borderline personality disorder, probably associated with a reactive depression. As such, she is psychiatrically vulnerable and publication of material from her psychiatric file would be likely to be detrimental to her mental health. The risk extends to one of causing self-harm. The prisoner is also at risk from persons in the prison subculture, if some particular aspects of the file were disclosed.

Dr Epstein accepted in cross-examination that the basis of his diagnosis was more limited than it would have been if he had seen the prisoner personally. Further, he does not know her present circumstances.

He holds to his opinion despite previous publication of details of the prisoner’s case in the media.

He does not believe an ex-prisoner would feel positively about the publication of an investigation report into these matters.

He agrees that the circumstances of the unlocked cell incident gave rise to issues of grave public concern.

He recognises there is an overriding public interest in public awareness of the way prison institutions function, but he is concerned that collateral damage be minimised.

Mr Graeme Johnstone is the State Coroner. He gave evidence with respect to a particular document forming part of the Coroner’s brief in the inquest into the death of Wesley Jennings. I will elaborate on this evidence in dealing with that document.

In final address senior counsel for the defendant described Mr Delphine, Mr Anderson, Ms Versey and Mr Johnstone (whom he had cross-examined) as “obviously good and worthy people”. His primary criticism of them was that they reflected a “blinkered approach” to the question of public interest, which focussed too much upon considerations of security. I do not accept that this case falls to be determined by way of such a sweeping criticism. It seems to me rather, that the documents in question raise a series of discrete and complex issues of the public interest, which can only be determined on an individual basis.

It was also submitted on behalf of the defendant that the evidence of Mr Delphine and Mr Anderson should be treated with caution, inasmuch as they had a personal involvement in some of the events in issue. Further, it was said that they had not adequately considered the potential benefits of redaction. Once again these considerations, insofar as they deserve to be given any weight, fall to be resolved by reference to particular documents in issue.

The second plaintiff relies, firstly, on his own affidavit which deposes to his position as the Chief Executive Officer of the Department of Corrective Services, Western Australia. It further deposes to the security sensitivity of the report prepared for the Western Australian Department of Justice which is in issue.

In turn, the affidavit of Mr Brett Hunt, the Assistant Superintendent of the Department of Corrective Services, Western Australia, emphasises the circumstances of confidentiality in which the report was prepared.

The plaintiffs also tendered parts of the affidavit of Professor John Van Groningen, an expert retained by the defendant with qualifications as Adjunct Professor and consulting criminologist within the Criminal Justice Research Group, School of International and Community Studies, RMIT University. The portions tendered demonstrate Professor Van Groningen was retained to advise with respect to the principal operational bases upon which the plaintiffs seek to raise issues of public interest. In the event, Professor Van Groningen’s opinion was not put in evidence, and it is submitted by the plaintiffs that inferences should be drawn that his evidence would not have assisted the defendant and that the evidence put forward on behalf of the plaintiffs can be more readily accepted.[47] Further, the second plaintiff specifically relies on the evidence of Professor Van Groningen, that the contents of the document relating to a Western Australian facility should not be made public.
[47]Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916.

Finally, the affidavit of a solicitor was tendered by the defendant evidencing previous media publications relating to the matters in issue.

I turn then to examine the documents individually.

Item 15

Item 15 comprises a redacted version of a patient profile from the files of Thomas Embling Hospital.

It is apparent the defendant, if permitted, would use it as relating to allegations already the subject of media report. The essential elements of this reporting are reflected in the statement of Australian Associated Press of 24 October 2003 exhibited to the affidavit of Elizabeth Kathleen Price sworn 30 May 2007.

A Victorian prison officer was today charged with raping a 24 year old mentally ill female inmate.
The alleged rape by 27 year old Kelvin McCann resulted in a pregnancy and the woman was later taken to a secure psychiatric hospital, the Melbourne Magistrates’ Court heard today. …
Crown Prosecutor Mick Jones told the Court the woman had been moved into the management unit of the Dame Phyllis Frost Centre because of her mental state and the risk of self-harm in May this year. She was to be moved to the Thomas Embling Hospital, a secure psychiatric institution, but there were no beds available. On June 30, after trouble in the visitors area, McCann and another officer locked down the management unit before handing the keys back to the supervisor, Mr Jones said. After day staff left, McCann was left alone in the unit and at 9.30 pm he opened the door of the alleged victim’s cell which had been left unlocked, the Court heard.
The prison officer then told the woman to go to the supervisor’s office where he allegedly raped her.
“He ordered her to perform oral sex on him and then he had sexual intercourse with her”, Mr Jones said.
After the alleged attack the woman was told to return to her cell.
In July, the inmate was transferred to the Thomas Embling Hospital and in August she made a formal complaint over the alleged rape.
Tests confirmed she was pregnant.
Mr Jones told the Court that DNA tests indicated “the defendant was the biological father of the then foetus.”
McCann was suspended on August 6 and shortly after he threatened other prison staff against implicating him in the alleged rape.
The Court also heard McCann had previously been fined but not convicted for impersonating a police officer.
… The woman has since left the correctional system and the pregnancy was terminated.

(I shall refer to the alleged incident of June 30 described in this report as the “unlocked cell incident”).

Despite the details disclosed, the content of the patient profile which remains in issue, is not within the public domain.

In my view the overwhelming public interest is in the maintenance of confidentiality of the patient profile.

It is headed “Strictly Confidential” and I am satisfied that when prepared it was intended to remain such.

Section 47(1)(g) of the Corrections Act provides that every prisoner has the right:

If intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the Governor’s approval outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances;

In the present case it appears the medical officer considered it necessary or desirable that the prisoner have treatment at the Thomas Embling Hospital (the Victorian Institute of Forensic Mental Health).

Section 6A of the Mental Health Act 1986 (“the Mental Health Act”) in turn provides that it is the intention of Parliament that a series of principles be given effect to with respect to the provision of treatment and care to people with a mental disorder. The first of those principles is:

(a)people with a mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards.

Section 16 of the Mental Health Act provides for the transfer of mentally ill prisoners from prison to an approved mental health service. By order of 4 July 2003 the prisoner was directed pursuant to section 16(3)(b), to be removed from the Dame Phyllis Frost Centre (“DPFC”) as a security patient, to the psychiatric inpatient facility at the Victorian Institute of Forensic Mental Health.

It is apparent that the patient profile in issue was created for the purposes of the prisoner’s psychiatric care following her transfer from DPFC for the purposes of treatment of mental illness.

It is in the public interest that medical records created in these circumstances be protected in order to protect a class of persons of special vulnerability by reason of their status.

Section 120A of the Mental Health Act reflects the vulnerability of the mentally ill. It provides for the confidentiality of information acquired by reason of the fact that a person is a patient of a relevant psychiatric service. Sub-section (2) provides that a relevant person must not except to the extent necessary —

(a) to carry out functions under this or any other Act; or
(b)to exercise powers under this or any other Act in relation to a relevant psychiatric service; or
(c)to give any information he or she is expressly authorised or permitted to give under this or any other Act—

give to any other person, whether directly or indirectly, any information acquired by reason of being a relevant person, if a person who is or has been a patient of, or has received psychiatric services from, a relevant psychiatric service could be identified from that information.[48]

[48]Relevant person is defined to include a person who is or has been engaged or employed by or on behalf of a relevant psychiatric service.

The section goes on to state a number of exceptions to this general prohibition, commencing with the consensual giving of information, and then setting out a series of circumstances in which the public interest favours publication of the information. Sub-section (3A) further allows the Minister to authorise the giving of information if he or she considers it necessary to do so in the public interest. In my view, the scheme of the section supports the conclusion that there is ordinarily a clear public interest in preserving the confidential identity of persons who receive psychiatric services.

This view of the section is supported by parallel provisions of the Corrections Act. It would be anomalous if the transfer of a mentally ill prisoner to Thomas Embling Hospital reduced the privacy to which she was entitled.

Section 30 of the Corrections Act provides for the secrecy of “confidential information” including:

(d) information relating to the personal affairs of a prisoner;

It does so by imposing an obligation of secrecy upon prison officers and other defined persons including the Secretary to the Department of Justice.

Section 30(5) provides an exception with respect to the recording or accessing and using of health information within the meaning of the Health Records Act 2001.

In turn, the provisions of the Health Records Act 2001,[49] the Information Privacy Act 2000, s.28 of the Evidence Act 1958 and s.13 of the Charter of Human Rights and Responsibilities Act 2006 also tend to support the view that the privacy of medical records should be respected unless there is a demonstrable public interest requiring their disclosure.
[49]Discussed by Maxwell P in the Royal Women’s Hospital case at [64]-[65], 37.

The public interest here in issue, however, goes beyond a general policy objective relating to privacy. It is in the public interest that patients and staff at Thomas Embling Hospital and like institutions have confidence in the security of psychiatric records. Such confidence must assist in obtaining co-operation within what is ultimately a custodial environment. It might also be reasonably regarded as inherently likely to have the capacity to support treatment and care of the patients.

Mr Delphine said:

… prisoners give their information to authorities often by self-report in terms of their own mental history and background, their substance abuse, their fears, their apprehensions, and those matters are given in good faith on the presumption that they will be kept and used by authorities to assist in the management of the individual …

Free disclosure by prisoners of this information is significant for the proper management of prisons and facilities such as Thomas Embling Hospital, both in the interests of the prisoner concerned and other prisoners, patients and staff. A threat to the confidentiality of this sort of information raises serious operational issues.

The public interest in protecting the proper operation of the hospital may be regarded as analogous to that recognised in X v Y.[50] In that case it was held that the public interest in preserving the confidence of records identifying actual or potential AIDS sufferers, outweighed the public interest in the freedom of the press, in part because victims of the disease should not be deterred by fear of discovery, from attending hospital for treatment.
[50](1987) 13 IPR 202; [1988] 2 All ER 648.

There are also other more specific issues of the public interest in the present case.

The document in issue refers to a history of security alerts with respect to the prisoner. The basis of such alerts and the characterisation of the prisoner’s mental state, are matters with the potential to help reveal the identity of the prisoner.

The public interest requires a precautionary approach in this regard.

There is also a risk of damage to the prisoner’s health if the document is published even in a redacted form. I accept the evidence of Dr Epstein that the prisoner has a borderline personality disorder and that it is likely that publication of the confidential profile, whether or not the prisoner’s name is specifically mentioned, may be detrimental to her mental health.

Mr Delphine, Mr Anderson and Dr Epstein also gave evidence to the effect that public identification of the nature of the prisoner’s vulnerability would create potential further risks for the prisoner by providing specific bases for potential harassment if she were identified. In my view however, this is a concern capable of being adequately addressed by redaction.

Lastly, it is pertinent to observe the document does not augment the information concerning the prisoner’s history at DPFC and in particular the unlocked cell incident, which is currently available to the public. It is this history which is the focus of the defendant’s assertion of countervailing public interest in respect of this particular document.

It follows from the above considerations that the public interest does, on balance, favour the suppression of publication of item 15. It does so ultimately by reason of specific considerations of the public interest in the proper administration of the records of Thomas Embling Hospital, with respect to an involuntary patient transferred from a prison. It is not simply or indeed principally a public interest in giving effect to public policy objectives relating to privacy.

Item 16

Item 16 comprises redacted copies of:

·Two versions of a “major investigation plan” relating in the first instance to complaints to an official prison visitor concerning sexual assault of prisoners at DPFC by prison officers;[51]
·Copies of notes made during interviews with a series of officers of Corrections Victoria concerning the unlocked cell incident and other matters including the conduct of a prison officer named Falconer;
·A memorandum of 9 October 2003 from the Acting General Manager, Women’s Prisons Region to the Director of Prison Services concerning staff conduct at DPFC;
·A memorandum of 15 June 2003 from the Acting Director, Corrections Inspectorate to the Secretary, Department of Justice concerning alleged staff misconduct at DPFC;
·A memorandum of 18 February 2004 to the Commissioner, Corrections Victoria from the Director, Corrections Inspectorate concerning the outcome of investigations into allegations of staff misconduct at DPFC;
·A copy letter seized from mail to a prisoner within a correctional facility.

[51]Section 35 of the Corrections Act 1986 provides for the appointment of official visitors.

Victoria submits these documents should not be published because:

(a)the documents are in part draft documents which are potentially misleading;
(b)they disclose the broad methodology proposed for a joint investigation by Victoria Police and departmental officers, of allegations of sexual misconduct by prison officers at DPFC;
(c)such disclosure will inhibit the co-operation of the Victoria Police in future investigations of a similar kind;
(d)such disclosure will inhibit further investigations of a similar kind by affecting the willingness of prison officers to participate;
(e)the documents in part disclose personal and sensitive information.

It is necessary to consider these submissions by reference to the individual documents in issue.

The Investigation Plans

These plans are directed to the investigation of matters of patent public interest, namely allegations of sexual misconduct by prison officers towards prisoners.

The public interest is enlivened not simply because the plans are concerned with governmental action, but more specifically because they deal with matters affecting the liberty of the subject and allegations of abuse of government power.

The fact that the investigation plans constitute draft documents does not, in my view, render them of no interest or evidentiary value. They can be described as drafts if published and the defendant states that it would so describe them. There is no final version which is available for publication in evidence before me and hence the draft documents constitute the best evidence of the Government’s plans during the time in issue.

The question of the extent to which the assessment and subsequent phases of the proposed investigation were in fact implemented, is a separate question which cannot logically deprive the plans of their public interest.

I also do not accept that the publication of proposed investigation methodology is contrary to the public interest simply because it comprises a proposal. To the contrary, the existence of such a methodology is itself a matter of the public interest and its publication would have to be shown to have adverse operational effects before it could be said to be contrary to the public interest to publish.

I do not accept that the publication of the plans will inhibit the Victoria Police in undertaking further investigations of like events. Mr Anderson conceded as much in evidence. The complaints are serious ones of a kind which the police can be expected to continue to investigate when requested to do so.

I also do not accept that the publication of the methodology disclosed in the plans will inhibit the co-operation of prison officers in the investigation of future misconduct. The plans do no more than confirm what would otherwise be a reasonable expectation namely that allegations of misconduct would be thoroughly investigated.

It is not enough to postulate that prisoners may seek to use the information “creatively” (as Mr Anderson said). There must be some realistically feasible adverse result before suppression would be warranted.

The investigation plan documents do not contain personal and sensitive information. The names of proposed investigating officers have now been redacted. The name of a particular prison officer under investigation with respect to particular allegations has also been redacted.

Accordingly, publication in redacted form of the content of the investigation plans should not be restrained in redacted form. No sufficient public interest countervailing those favouring publication has been identified.

Notes of Interviews With Departmental Officers

These documents are to be contrasted in a number of respects with the investigation plans referred to above. They contain notes of parts of interviews with named officers, concerning matters of interest to the investigators.

Such interviews took place in the context of a statutory regime, which explicitly recognises that the proper management of prisoners requires the maintenance of secrecy for appropriate purposes. This is most clearly illustrated by s.30(1)(f) and (g) of the Corrections Act which relevantly define as “confidential information” for the purposes of s.30:

(f)information concerning the management of, or the operation of security measures in, or in relation to, a prison; or
(g)information concerning the investigation of a breach or possible breach of the law by—
(i) a prisoner; or
(ii) an officer within the meaning of Part 5; or
(iii)a person authorised under section 9A to exercise a function or power; …

Publication of the notes comprised in item 16 does in my view have the potential:

(a)to inhibit future co-operation by prison officers in confidential departmental inquiries; and

(b) to disclose personal and sensitive information.

It is necessary to consider the notes of each interview.

Pages 410-411 of the court book comprise copy notes of parts of a discussion between persons unidentified, save as M and C. It is apparent they relate to the unlocked cell incident. In particular they relate to the content of complaints made by the prisoner and the response of officers to these complaints. Although the names of the speakers are not identified in the redacted document, they are in fact known to the defendant. Further, it might be inferred from information otherwise available in the public arena that the person identified as M is in fact former prison officer McCann.

Pages 417-418 of the court book purport to comprise notes of part of an interview with Robert Wise. Once again the questions and answers are concerned with the nature of complaints made by the prisoner in respect of the unlocked cell incident and the response of prison officers.

Page 422 of the court book identifies the interviewed officer as Brendan Money (surname partly obscured) and purports to contain redacted notes under the heading “Falconer”.

Page 423 purports to contain redacted notes relating to the referral of the unlocked incident to the Victoria Police.

Page 424 purports to contain redacted notes under the heading “Morning After Pill”.

Page 427 is headed with the name Paul Delphine and purports to contain redacted notes relating to the unlocked cell incident.

Page 430 is headed with the name Kelvin Anderson and refers to the DPFC investigation. It otherwise contains no substantive notes of discussion.

Page 431 and 432 contain redacted notes of discussion concerning the nature of briefings following the unlocked cell incident.

In my view it is not in the public interest that the partial notes in redacted form be published, subject to two exceptions to which I shall return.

(a)The degree of redaction has left only remnants of the notes remaining on the pages listed above as the subject in respect of which the defendant contests the question of public interest.
(b)Such remnants are redacted to such an extent as to give rise to a real risk they will not be properly or fairly understood.
(c)The notes are of interviews which were understood by the officers concerned to be confidential and I accept the evidence of Mr Delphine and Mr Anderson that there is a real risk that their publication may inhibit the conduct of confidential interviews in similar circumstances in the future.
(d)The need for such confidential interviews is a serious one within the prison system. I accept the evidence of Mr Delphine and Mr Anderson that a high level of co-operation in the provision of confidential information should be encouraged and sustained within the prison system. I accept that such provision is necessary for the maintenance of dynamic security.
(e)The substantive content of the redacted notes (insofar as it can be understood) is, in any event, materially embodied in further and more intelligible documentation the subject of the claim. Hence the public interest favouring publication is limited.

The two exceptions are the notes of interviews with Mr Delphine and Mr Anderson themselves. It seems to me that by reason of their senior management positions, they are not at the operational level which justifies protection in order to ensure future cooperation by prison officers with confidential enquiries. Furthermore, in their cases, the unredacted notes remain sufficiently intelligible to enable a fair understanding of them.

The Memorandum of 9 October 2003[52]

[52]Court book 434.

This redacted document expresses conclusions and strategies. In my view, it addresses issues of particular public interest and no sufficiently countervailing issues of public interest have been established. It no longer contains a series of matters to which objection was previously taken. It has been redacted to substantially reflect Mr Delphine’s identification of matters of sensitivity.

The Memorandum of 15 January 2003[53]

[53]Court book 436.

This document summarises and responds to findings of a report of investigation into allegations of staff misconduct at DPFC. In particular, it contains conclusions with respect to allegations relating to the unlocked cell incident and suggested approaches to addressing identified concerns. It also contains a suggested approach in respect of findings relating to “part 2” which have themselves been entirely redacted. It further states redacted findings with respect to prison officer Falconer and a suggested approach with respect to these findings. The last pages of the document are entirely redacted.

In my view the initial statements of conclusion with respect to issues of misconduct are matters of particular public interest. There is no countervailing public interest which has been sufficiently established which would justify restraint upon publication of findings with respect to the unlocked cell incident. However, the statement of suggested approach at court book 437 in response to finding (6) (which has itself been redacted), is unintelligible given the redaction of the initiatives to which it refers.

Further, the suggested approach at the top of court book page 438 is stated after deletion of the entire preceding section. This has a material capacity to mislead and encourage speculation. In my view neither of the passages dealing with suggested approach to which I have referred should be published. They are so deprived of meaning by the redaction of contextual material in the public interest which is not contested, that there is no residual public interest in their publication sufficient to overcome their potential to mislead and hence undermine the proper administration of prisons and in particular the DPFC.

The findings with respect to Falconer are intelligible and no sufficient countervailing public interest has been established which would justify their suppression. The suggested approach to the Falconer findings is also intelligible and complements the findings to which I have already referred. No countervailing public interest has been established which would justify its suppression.

The findings with respect to Falconer disclose inappropriate conduct, whether or not such conduct can be said to have amounted to a criminal offence.

Mr Delphine conceded in cross-examination that if all reference to individuals other than Falconer were removed from the record of interview comprised in item 17, he would have no objection to the document going into the public domain. This concession logically leads to the conclusion that a similar approach should be adopted with respect to the memorandum of 15 January 2003.

Having regard to the above matters, I am not persuaded that it is in the public interest for the redacted version of the document, insofar as it relates to Falconer, to be suppressed from publication.

The Memorandum of 18 February 2004

This comments upon the report of an investigation into alleged staff misconduct allegations at DPFC. In my view it addresses issues of the public interest, namely the adequacy of the departmental response to the unlocked cell incident. No sufficient countervailing public interest has been established to justify restraint of its publication.

The document comments on a finding made in the report with respect to the manner in which one aspect of the unlocked cell incident was reported within the administrative framework and chain of command of Corrections Victoria. It is very difficult to articulate a public interest in suppressing either the finding as to the departmental response or the commentary in this memorandum upon it. There can be no public interest in the concealment of administrative incompetence, save where its disclosure gives rise to questions of privacy or operational sensitivity sufficient to outweigh the public interest in disclosure of the matter in issue. I am not persuaded that this is the case here.

The Copy Letter to a Prisoner

This letter from an ex-prisoner to a prisoner describes observations made of another ex-prisoner in a relationship with a prison officer.

Victoria submits that publication of the letter would raise concerns:

(a) that the writer may be identified;
(b) that the ex-prisoner the subject of discussion may be identified; and
(c)that the extent and efficiency of intelligence gathering from prisoners’ mail may be highlighted.

The letter does not, as I understand it, disclose material facts of misconduct by a prison officer which are not evidenced in other ways. The public interest in its publication is therefore limited.

In my view both the handwriting and the circumstantial nature of the letter give rise to a high risk its writer may be identified if it were published by way of television or other medium which represented it photographically. The letter itself expresses the anticipation that it may be read by the prison authority. If the writer of the letter were identified I accept the evidence of Mr Anderson, Mr Delphine and Dr Epstein that this could have unfortunate consequences for the writer if she again becomes a prisoner.[54] It is more speculative to conclude that there is a risk that the subject of the letter may also be identified and somehow be placed at risk of harm.[55] I do not find it necessary to so conclude for the determination of the question in issue. I am of the view, however, that publication would also highlight the extent and efficiency of intelligence gathering from prisoners’ mail as a matter of prison operations. Although this practice may be regarded as notorious in a general sense, the adequacy of its implementation and the use of what Mr Delphine called “covert security intelligence” is not something which it is in the public interest to highlight.
[54]Mr Anderson gave evidence that anyone who gives information in a prison setting is, in the prisoners’ terms, a “dog”. The worst thing that can happen to a prisoner is to be “put on the dog” by other prisoners. It gives rise to a real risk of physical harm between prisoners.
[55]Mr Delphine said “… the issue of cooperation with staff is not favourably received by prisoners and I believe that (the prisoner) would be at risk both in the community and in prison should she return for having formed that relationship with a prison officer. She would be seen in prison parlance as a dog.”

Although the factors favouring suppression of publication are relatively limited, they are in my view sufficient to outweigh the likewise limited public interest in publication of this document.

Item 17

This document comprises a typewritten record of an interview with prisoner officer Falconer. This record of interview comprises a record of the time, date, place and personnel involved in the interview. In substance, it is constituted by a series of questions to which the prison officer made a “no comment” response. It implicitly reflects the Department’s understanding of the allegations then being made against Falconer. In the course of cross-examination, Mr Delphine conceded that if all references to individuals other than Falconer were removed from the document he had no objection to the document going into the public domain. In the light of this concession I am not persuaded that it is in the public interest for the redacted version of the document to be suppressed from publication.

Item 18

Item 18 comprises a redacted printout of the contents of a floppy disk. It reports the result of an investigation into staff misconduct at DPFC.

It commences with a summary of the background to the investigation from which names have been redacted, save those of three prison officers. It then sets out the general nature and methodology of the investigation. It summarises findings with respect to:

(a) the unlocked cell incident;
(b)the manner in which information relating to the unlocked cell incident was reported and managed within Corrections Victoria;
(c)allegations relating to prison officer Falconer;
(d)the procedural implications of the unlocked cell incident.

It then sets out detailed findings with respect to each of the above matters. It concludes with a discussion of relevant policy and strategy bearing on staff/prisoner relationships.

Each of the parts of the document has been redacted in order to suppress the identity of prisoners referred to and a number of prison officers involved in events, but against whom no allegation of misconduct is made. The document has also been redacted in part to meet concerns expressed with respect to matters affecting security.

Victoria submits in summary that:

(a)the privacy of prison officers not charged with offences should be respected;
(b)the static and dynamic security of DPFC will be adversely affected by the publication of the document;
(c)there is a need to maintain the confidentiality of information provided in confidence in order not to harm the essential free flow of candid information in the future;
(d)there is a need to maintain the confidence of prisoners and staff (including whistleblowers) in the integrity of the administration of the system;
(e)there is a need to maintain confidentiality in particular concerning investigation processes into events involving alleged misconduct in prisons;
(f)the document is not the final version of the investigation report;
(g)the document does not disclose a failure to address issues of the public interest, rather it discloses a full and adequate departmental response to these issues.

As I have said, the names of relevant prisoners and of a number of prison personnel have now been redacted from the document. The remaining names of prison officers disclosed are those first, of McCann, who was charged with offences arising out of the unlocked cell incident. Secondly, that of Falconer who, as I have already said, is identified in other documentation as alleged to have been engaged in inappropriate behaviours (and to the identification of whom Mr Delphine did not object). In my view, the public interest as to his identification does not turn on whether or not such conduct constituted criminal conduct and the suppression of his name has not been justified. Thirdly, a prison officer Bardsley is identified, who is alleged to have had sexual contact with a prisoner and whose telephone number is alleged to have been found in a prisoner’s cell. Mr Delphine gave evidence that this officer resigned after the commencement of disciplinary processes and Mr Delphine would have no objections to disclosing his name. In the light of this concession I am not persuaded that his name should be suppressed.[56]
[56]Likewise, Mr Delphine made clear that he had no objection to the naming of members of senior management.

I turn then to the question of disclosure of elements of security procedures. In my view the description of lock-up procedures in the first three paragraphs of court book page 540 does descend to a level of detail which it is contrary to the public interest to disclose. This interest is reflected in the provisions of s.30(1)(f) of the Corrections Act. I further accept Mr Anderson’s evidence that the detail of such matters is a matter of extreme sensitivity with respect to the security of a prison.

I am not, however, persuaded that the more general summary of findings relating to the lock-up procedures which were adopted at the time of the unlocked cell incident on the one hand, or the more detailed discussion of consequential concerns commencing at the foot of court book page 540 on the other hand, require suppression.[57] I do not accept that no disclosure of lock-up procedures at a past point in time, should ever be permitted. The identification of shortfalls in past procedure is a matter of legitimate public interest, which can only be outweighed if it gives rise to an identifiable concern with respect to ongoing security. The sensitivity of the information must also be assessed in circumstances where the alleged nature of the unlocked cell incident is already in the public domain. Taking these matters into account, I am not satisfied that further suppression is justified on the basis of security concerns.
[57]Mr Delphine accepted that item 18 was not primarily directed to a description of internal security arrangements at DPFC.

Likewise, I am not persuaded that insofar as the report discloses confidentially obtained information, it does so in a manner which is likely to inhibit future confidential discussions with prison staff or prisoners. This concern must be more than a general potential concern, if it is to outweigh the public interest in ventilating security and operational issues bearing directly and in a seriously adverse manner on the welfare of prisoners.

Provided the extent to which information is released has a proportionality to the seriousness of the issue which it raises, I do not accept that some disclosure of the context of confidential information (as distinct from its source) will necessarily or probably reduce confidence of staff and persons in the prison system. To the contrary, it may well increase their confidence that the system will respond to and seek to deal with misconduct and operational faults in a prompt and careful manner.

Insofar as investigation processes are disclosed by the report, such methods contain no surprise or covert elements. The description simply confirms the thoroughness of the investigation founding the conclusions which are stated. In my view it is plainly in the public interest that the methodology be disclosed. There is no plausible basis on which its revelation could be regarded as inhibiting investigation of any future incident or incidents of like kind.

The methodology disclosed enables the findings to be evaluated including the following findings as to the unlocked cell incident:[58]
[58]Court book, 548-549.

Corrections Inspectorate considers the … incident was comprised of elements which together presented grave concerns. The elements in this case were as follows:
·a female prisoner;
·her cell door being found unlocked at night;
·prisoner accommodated in the prison system’s highest security unit for women;
·pending medical certification to Thomas Embling Hospital as a security patient at the time (30 June – 2 July);
·mentally unwell, including being at high risk of self harm or suicide;
·allegations of consensual intercourse with a staff member after her cell door was found unlocked;
·additional allegations of consensual sexual activity with a second prison officer;
·request by prisoner for “morning after pill”; (known by RESU on 2 July but not communicated upwards);
·telephone number of staff member found in her cell; and
·prisoner certified by Dr Forrester on 3 July 2003.

In turn the findings as to the underlying facts, enable the departmental response to be assessed and understood, leading to further findings as to the adequacy of this response. These findings in turn lead to recommendations as to organisational practices.

I accept that item 18 is not the final report which was produced in evidence before me. Nevertheless, it is a substantial document and the changes in the final report are essentially matters of detail and refinement. Further, it is the best evidence of the results of the investigation which is available to the defendant. It will be open to Victoria to further disclose relevant portions of the final report if it wishes to do so.

The fact that the document demonstrates a proper and apparently full response to the matters under consideration, likewise does not seem to me to be a proper basis for its suppression. It is in the public interest that there be disclosure of the character of the response by Corrections Victoria to the matters in issue, unless some countervailing detriment to the public interest can be shown to arise from disclosure. For the reasons I have set out above, subject to further redaction in respect of certain matters, namely the detailed discussion of lock-up procedures, I am not persuaded document 18 should be suppressed.

Item 20

Item 20 comprises an internal management review report (“the report”) prepared for the Coroner with respect to the suicide of a prisoner named Jennings at Port Phillip Prison in 2004. The document is headed “Restricted Document”. The confidential nature of the report is corroborated by s.1(h) of the Corrections Act which defines confidential information for the purposes of the secrecy requirements of that section as including:

(h)Information contained in a report given to a court if not disclosed in the decision of the court or any reasons given by the court for a decision of the court;

Coroner Spanos commenced the hearing of an inquest into the death of Jennings in March 2007, but after three days this hearing was adjourned sine die and it has not yet been completed.

It appears the report has not yet been tendered in evidence.

The State Coroner, Mr Graeme Johnstone, has given evidence in this proceeding that prior to being tendered in evidence, documents forming part of an inquest brief are usually made available to parties having a sufficient interest in the subject matter of the inquest, but not to the members of the public or the media.

Once documents have been tendered in evidence in the course of an inquest, it is not uncommon for representatives of the press and electronic media to ask for access to the documents.

It is generally the practice of the Coroners Court to permit members of the media to have access to documents tendered in evidence in the course of an inquest, but where those documents include “graphic” photographs depicting matters such as the deceased’s body, body parts or blood, it is the practice of the Coroners Court not to permit publication of those photographs.

In Mr Johnstone’s opinion it would be detrimental to the controlled and orderly conduct of the inquest into the death of Jennings if the report were published prior to its production in evidence at the inquest.

The Coroners Act 1985 (“the Coroners Act”) gives a coroner broad powers with respect to the conduct of an inquest into a death.

Section 44 provides that:

Rules of evidence not applicable
A coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner the coroner reasonably thinks fit.

Section 46(1) provides:

Powers of coroners at an inquest
(1)If a coroner reasonably believes it is necessary for the purposes of an inquest, the coroner may—
(a)summon a person to attend as a witness or to produce any document or other materials; and
(b)inspect, copy and keep for a reasonable period any thing produced at the inquest; and

(c) order a witness to answer questions; and
(d)order a witness to take an oath or affirmation to answer questions; and
(e)give any other directions and do anything else the coroner believes necessary.

Section 47(1) provides:

Exclusion from an inquest
(1)A coroner may order the exclusion from an inquest of all or any persons if the coroner reasonably believes it is in the interests of any person, of the public or of justice.

In turn, s.58(1) positively requires a coroner to suppress reports of evidence given at an inquest in specified circumstances:

Restriction on publication of reports
(1)A coroner must order that no report of an inquest or of any part of the proceedings or of any evidence given at an inquest be published if the coroner reasonably believes that it would—
(a) be likely to prejudice the fair trial of a person; or
(b) be contrary to the public interest.

The Coroners Act thus implicitly recognises that the publication of evidence at an inquest may raise issues of special sensitivity. It further vests the resolution of those issues in the ordinary course in the coroner, who acts as a specialist tribunal. It specifically imposes on the coroner an obligation to consider whether a report of any part of the proceedings in an inquest, or of any evidence given at an inquest, would be contrary to the public interest.

In the present case, Victoria seeks to preserve the confidentiality of the report until the completion of the inquest hearing. In my opinion, it is in the public interest that publication be restricted until the completion of the inquest, save in accordance with leave granted by Coroner Spanos.

I would, however, further reserve liberty to apply in order that the defendant may return to this Court, if there is a material change in circumstances after the making of this order.

In my view both the general public interest in knowledge of the actions of government and the more specific interest in knowledge of the circumstances of deaths in custody are outweighed:

(a)by the public interest in allowing the Coroner to control the release of information during the inquest process;
(b)by the public interest in allowing the Coroner to give effect to the statutory scheme of s 58 of the Coroners Act;
(c)by the public interest in careful evaluation by due process, of the appropriateness of publication of graphic death scene photographs (albeit substantial redaction of these images is now accepted by the defendant);
(d)by the public interest in ensuring that publication of the detail of a suicide within prison does not result in copy-cat suicidal behaviour and providing the opportunity for evaluation of this consideration by the Coroner;
(e)by the public interest in ensuring that the photographs do not disclose aspects of the physical environment in which the death occurred in a manner which incidentally discloses sensitive circumstances of other prisoners and in ensuring that this matter can be carefully evaluated by the Coroner;
(f)by the fact that the suppression sought is an interim suppression only.

The above factors fall to be considered in circumstances where a significant reduction in the level of deaths in custody has been achieved in recent years, through appropriate management measures and the implementation of appropriate strategies both by the Coroners Court and Corrections Victoria.

Further, the fact that some aspects of the information contained in the report are already in the public domain does not justify publication of the whole, which contains a variety of additional information.

Given the above conclusions it is unnecessary to consider further other matters raised by the witnesses for Victoria, including the ultimate risk of informing copycat behaviour, and matters affecting the privacy of the deceased’s family. These are, in my view, matters for the Coroner to consider.

Item 21

The defendant seeks to publish a statement as to the outcome of a review of a prison unit in Western Australia by officers of Corrections Victoria.

It is submitted by the defendant that the words in issue are in general terms and that they have no capacity to harm the security, good order and safety of prisons in either Victoria or Western Australia.

It is further submitted that there is a public interest in learning of the fact of a review at the particular prison in issue and of its overall conclusions.

The second plaintiff (“Western Australia”) submits that the fact of the review is itself confidential and the general conclusion reached by it is a matter of real operational sensitivity. This view is supported by the affidavits of the second plaintiff, Mr Brett Hunt, the defendant’s own expert Professor Van Groningen and the evidence of Mr Delphine.

It is further submitted by the plaintiff States, that release of the documentation may materially affect confidence in the State of Victoria and its public service, and in particular, confidence in its capacity to conduct confidential assessments for the benefit of other States with respect to matters relating to conditions and security within interstate prisons. This submission is supported by the evidence of Mr Delphine, that if the report were released, it could severely jeopardise relations between Western Australia and Victorian prison officials.

In my view it is in the public interest that the Australian public receives the benefit of the opportunity for independent and confidential advice as between States on matters of difficulty and sensitivity relating to prison operations.

I further accept that the ongoing capacity of Corrections Victoria to participate in this sort of process is likely to be materially impacted as a matter of practicality, if the substance of the report’s concerns and conclusions are released even in summary form.

Although it is difficult to satisfactorily quantify and assess, I also accept that identification of the prison unit in question and of the general nature of the report’s conclusion, is likely to be adverse to the good management and control of the prison unit in issue.

When regard is had to these matters as a whole, there should be no publication permitted of the information contained in document 21.

Conclusions

For the above reasons, publication of the information:

(a)comprised in item 15 should not be permitted;
(b)comprised in item 16 should be permitted subject to further redaction in the respects identified above (in particular, further redaction in part of the notes of interview with departmental officers, the memorandum of 15 June 2003 in part, and the copy letter to a prisoner in whole);
(c)comprised in item 18 should be permitted subject to further redaction with respect to the disclosure of security procedures;
(d)comprised in item 20 should not be permitted pending completion of the inquest into the death of Jennings, save by leave of Coroner Spanos and subject to express liberty to further apply to this Court; and
(e)comprised in item 21 should not be permitted.

The above conclusions are subject to and premised upon the redactions offered by the defendant at the conclusion of the hearing before me.

I will hear counsel further as to the appropriate orders in the circumstances.

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[2007] VSC 431

29 November 2007