Taylor v Buckley
[2012] VCC 1858
•3 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
DAMAGES & COMPENSATION LIST
APPLICATIONS DIVISION
Case No. CI-11-03608
| Benjamin John Taylor | Plaintiff |
| v | |
| Sergeant Brian Buckley & Ors | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2012 | |
DATE OF RULING: | 3 December 2012 | |
CASE MAY BE CITED AS: | Taylor v Buckley & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1858 | |
REASONS FOR RULING
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Subpoena for Production – Victoria Police – legitimate forensic purpose - public interest immunity – legal professional privilege
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Spencer | Robinson Gill |
| Chief Commissioner of Police | Ms R Ellyard | Victorian Government Solicitor's Office |
| Office of Police Integrity | Mr M Teare |
HER HONOUR:
1 The plaintiff served subpoenas on Victoria Police seeking all documents and things regarding internal investigations by the Ethical Standards Department (ESD) of each of the three police member defendants in this proceeding (the ESD Subpoenas).
2 The ESD Subpoenas are not limited as to time or as to subject matter of complaints or investigations. Discussions between the parties prior to the hearing have clarified that the plaintiff seeks four files (numbered 1, 4, 6 and 7 respectively) which are referred to in the Schedule of ESD Files handed up to me at the hearing. The four files relate to complaints of assault, abusive language, misuse of handcuffs and excessive force.
3 File 1 (contained in Volume 1 of the documents handed up) relates to a complaint of assault made to Victoria Police on 29 September 2009 against the First Defendant. That complaint was not proceeded with because the complainant failed to provide further information. Files 4, 6 and 7 (which are contained in Volume 2 of the documents handed up) relate to complaints made against the Third Defendant. File 4 contains a complaint of assault and abusive language made on 19 September 2011. That complaint was withdrawn by the complainant. File 6 contains a complaint of misuse of handcuffs and excessive force made on 22 January 2009. That complaint was found to be not substantiated. File 7 contains a complaint of assault made on 18 April 2007. The Victoria Police were unable to determine that complaint.
4 During the course of submissions, further clarification was obtained to the effect that the plaintiff seeks an order permitting inspection of the following types of documents within each of the four files:
· The complaint;
· The statements of any witnesses concerning the matters complained of;
· Any internal documents including internal review documents which contain material capable of supporting the complaint;
· Any document analysing the complaint;
· Any document notifying the outcome of the complaint.
5 Counsel for the Chief Commissioner of Police identified and tagged the relevant documents in the two volumes which answer the description in the preceding paragraph. Counsel also tagged documents covered by legal professional privilege or documents which comprise correspondence with the OPI. I have examined each of these documents for the purpose of reaching the conclusions outlined below.
6 Counsel for the Office of Police Integrity (OPI) did not seek to make any submissions on the day of the hearing, but sought to rely on the objection of the Chief Commissioner. However, counsel also sought leave, in the event that the Court proposes to release any OPI documents which are found in the four files, to make submissions before any order is made releasing such documents for inspection. There was no objection to this course of action and I acceded to the OPI’s application.
Submissions
7 The Chief Commissioner opposes the release of any of the four ESD files on two grounds.
8 Firstly, insofar as the ESD Subpoenas seek files unrelated to the subject matter of the present proceeding, they should be set aside for lack of a legitimate forensic purpose. In this regard, the Chief Commissioner submitted that the material in the files could not substantially affect the credibility of the police member defendants because they do not establish any criminal convictions, or even findings of discreditable conduct but rather, at most, bear the status of unproven allegations. It was submitted that care should be taken before permitting the use of a subpoena to obtain documents to be used solely to impeach the credit of a witness. It was submitted that since any tendency evidence to be found in the four files would not be admissible in any event to prove that the defendants have a tendency to act in a particular way unless the court considers that the evidence will have “significant probative value”.[1]
[1]See section 97 of the Evidence Act 2008 (Vic).
9 Secondly, the ESD files are protected by public interest immunity and, where they are unrelated to the subject matter of the present proceeding, ought not to be disclosed because the balance of the public interest favours non-disclosure.
10 Thirdly, there was a claim of legal professional privilege in respect of two documents in Volume 1.
11 Finally, it was submitted that the feasibility of redaction should only be considered after the public immunity claim had been determined. The possibility of a limited release to the plaintiff’s lawyers was impractical in this case because any use of the documents in the proceeding would in turn required calling witnesses or putting to witnesses material that was in the documents which is the subject of the claim to public interest immunity and which is sought to be protected.
12 The plaintiff submits that the relevant documents which answer the description set out in paragraph 3 should be released because there is a reasonable possibility information in the files will materially assist the plaintiff’s case by:
· bearing upon matter which go to the credit of the defendants; and/or
· arming the plaintiff with information he may pursue to impeach the defendants’ credit; and/or
· enabling the plaintiff to determine whether to pursue a line of inquiry such as a tendency of the defendants or a defendant to act in the way alleged by the plaintiff in this proceeding, or a line of cross-examination as to credit.
13 The plaintiff submits that this is the case notwithstanding that none of the allegations in the files was substantiated. Moreover, the plaintiff submits that he needs only establish a legitimate forensic purpose for the material sought and that documents may have to be produced on subpoena even though they would not be admissible in evidence.
14 The plaintiff makes a number of submissions In relation to public interest immunity. First, he says, that there is a public interest in the plaintiff having a full opportunity to test the defendants’ credibility which predominates over any public interest against disclosure. Secondly, the fact that information has been communicated by a person to another in confidence is not sufficient to protect the information from disclosure. Thirdly, the court is able to minimise any potential damage to the complaints system by restricting access to plaintiff’s lawyer and counsel. Any potential damage flowing from the use of the documents or material at trial, including use of any correspondence between the ESD and the OPI could be mitigated, if not addressed, by appropriate redaction of the documents and/or through appropriate suppression orders.
15 The plaintiff made no submissions concerning the documents the subject of the claim of legal professional privilege.
Legal principles
16 A party seeking documents under subpoena must establish a legitimate forensic purpose for doing so. This must be more than a mere fishing expedition.[2] A legitimate forensic purpose will be established if the party seeking access satisfies the court that there is a reasonable possibility that the documents in question will materially assist its case. That is a low threshold, but it is a threshold.[3]
[2]Alister v R (1984) 154 CLR 404 at 414 per Gibbs CJ.
[3]Ragg v Magistrates Court of Victoria [2008] VSC 1.
17 In civil proceedings, the Court should be cautious in permitting the use of a subpoena to obtain documents to be used solely to impeach the credit of a witness, where the documents are said to bear only upon matters which go to credit and which are wholly unrelated to the issues in dispute.[4] However, relevance may be established if the claim in the proceedings, as is the case here, depends, in turn, on the defendants’ credit.[5]
[4]Fried v National Australia Bank Limited [2000] FCA 911 at [27].
[5]Comcare v Maganga [2008] FCA 285 at [38]
18 The fact that material accessed might not be able to be adduced at trial because it proves to be inadmissible is not determinative of an application to inspect documents produced in answer to a subpoena.
19 To determine the claim for immunity, the Court must strike a balance between competing public interests – on the one hand, whether harm would be done by the production of the documents and, on the other hand, whether the administration of justice would be frustrated or impaired if the documents were withheld.[6]
[6]Sankey V Whitlam (1978) 142 CLR 1; Alister v the Queen (1984) 154 CLR 404 at 412 per Gibbs CJ.
Evidence
20 The Chief Commissioner relied on the affidavit in support of objection to subpoenas sworn on 8 November 2012 by Justyn Zebrowski, Acting Senior Sergeant attached to the Disciplinary Advisory Unit of the ESD.
21 In that affidavit, Acting Senior Sergeant Zebrowski described the files as “internal complaint files which are created as part of a confidential complaints and disciplinary process within Victoria Police”.[7] He described this process in some detail but it is only necessary to consider those parts of his affidavits concerned as they apply to the tagged documents. His evidence may be briefly summarised as follows:
[7]Paragraph 9.3 of the Affidavit of Justyn Zebrowski.
22 When a member receives a complaint they are required to record it on an incident form and provide it to the ESD. Once completed, the complaint incident form is treated as a confidential document. If the complainant makes a statement at the time the complaint is made, the statement is attached to the form. When investigating a complaint, an investigator (either from the police region or from the ESD) will generally interview the complainant if this has not been done and may obtain statements from civilian and police witnesses. Some of these statements may reveal personal information about the witness and other persons. The statements are made in confidence and on the basis that the contents will not be disclosed without the maker’s permission except for the purposes of an investigation by or on behalf of ESD or for purposes connected with court or disciplinary proceedings arising out of the complaint. The member who is the subject of the complaint is not shown police statements or records of interview unless there is a prima facie case of misconduct, in which case the complaint must be canvassed with him or her. Participants have no right to obtain information provided to ESD by other persons.
23 The investigator is required to adopt one of the determinations set out in the Discipline Investigation Manual including (allegation) “substantiated” or “unfounded” or “not substantiated”, and may do so without giving the member an opportunity to be heard or to question the complainant.[8] The determinations are set out in a report provided to the investigator’s superior but not to the complainant or the subject member.
[8]See Exhibit JZ-5 to the Affidavit of Justyn Zebrowski.
24 In most cases the complainant and the member are notified of the outcome of the investigation by provision of a standard form letter. Where a complaint is determined to be not substantiated or unfounded, the complainant is also notified of a statutory right to make a complaint to the OPI.
25 Public disclosure of ESD files will reveal investigative methods used by the ESD and methods of intelligence gathering and may prejudice “the fearless and thorough investigation of police complaints”.[9] In many cases the complainant and subject member will not see the views or comments of investigators but only a summary which is sent to them. Public disclosure of opinions, advice and recommendations of ESD officers to their superior, and vice versa, “tends to negatively impact on the free and frank exchange of information and opinions between senior police officers in respect of policy complaints”.[10]
[9]Paragraph 44 of the Affidavit of Justyn Zebrowski.
[10]Ibid.
26 To the extent that the files relate to allegations which were found to be unfounded, not substantiated or otherwise unproven; and/or contain personal information received in confidence about persons other than the named police members; and/or contain details of deliberations and assessments by investigating officers, much of which will not have been made known to either the members concerned or the complainants, and which was intended only for senior command within Victoria Police, the release of the files would prejudice the ability of Victoria Police to properly receive and investigate complaints against police members because:
· It would disclose details of investigative processes used by ESD;
· It would inhibit the open exchange of information and views within Victoria Police which is essential to the proper functioning of the investigative and disciplinary process; and
· It would reduce the willingness of complainants and members to participate in such processes.
Findings and reasons
27 Even if it were relevant to the balancing exercise to be performed to consider whether or not it might be possible to allay the concerns underlying the objection by permitting release of redacted documents to the plaintiff’s lawyers rather than to the plaintiff, I am not assisted in this case by such a suggestion. This is because, as has been pointed out by counsel for the Chief Commissioner, any use of the documents in the proceeding would in turn required calling witnesses or putting to witnesses material that was in the documents which is the subject of the claim to public interest immunity and which is sought to be protected.
28 I accept the evidence of Acting Senior Sergeant Zebrowski and have taken it into account in reaching the conclusions set out below.
29 I have examined the documents which have been tagged on the top of three pages of Volume 1 by counsel on behalf of the Chief Commissioner. I find that these documents are either covered by legal professional privilege and/or constitute correspondence of the OPI. To the extent that one of the documents comprises correspondence from the OPI, I accept the evidence of Acting Senior Sergeant Zebrowski that disclosure of the document would impede the free and frank exchange between the OPI and ESD which may in turn undermine the effective performance of their respective investigative functions.[11] No submission was made on behalf of the plaintiff concerning the two documents in respect of which there was a claim of legal professional privilege. On their face, the two documents are clearly covered by the privilege. I therefore uphold the objection to release for inspection in relation to these three documents.
[11]Paragraph 43 of the Affidavit of Justyn Zebrowski.
30 The remaining documents in Volume 1 which were tagged by counsel on behalf of the Chief Commissioner are relevant to the matters in dispute in the proceeding which include the defendants’ credit. If the complaints in the files had been found “substantiated”, I would have had no difficulty being satisfied that that there is a reasonable possibility the documents will materially assist the plaintiff in preparing or conducting his case against the defendants, leaving aside the question as to whether or not the material could be adduced in evidence.
31 I note that the complaint which was the subject of documents in Volume 1 was not proceeded with and two of the three complaints the subject of documents in Volume 2 were not proceeded with or not substantiated. I acknowledge that the final complaint in Volume 2 was not able to be determined because of a conflict in the evidence. However, I note that the role allegedly played by the Third Defendant was a minor one. In these circumstances, I find it difficult to reach the required satisfaction, even acknowledging that the threshold is a low one.
32 However, if I am wrong in this regard and the low threshold of legitimate forensic purpose can be met even in circumstances where no complaint has been substantiated, I turn to consider whether the documents tagged by counsel for the Chief Commissioner are protected by public interest immunity.
33 I have carefully examined the documents in Volume 1 which have been tagged by counsel for the Chief Commissioner and which relate to a complaint against the First Defendant which was found “not proceeded with” because the complainant did not make himself available to make a statement. I consider that, on balance, the documents ought not to be released for inspection. This is because the importance of the material is low in that it can only be relevant, if at all, to credit; the complaint was not pursued by the complainant but the complaint process is a confidential one, and I consider that a prospective complainant who did not pursue his or her complaint is entitled to expect that his or her personal details and the details of his or her complaint will not be divulged except, and only so far as necessary to properly investigate the complaint. There is nothing to suggest that the material has already been made public. I consider that disclosure of some of the documents will reveal investigative methods used by the ESD, methods of intelligence gathering, and may prejudice investigation of complaints by inhibiting frank assessments by investigators and/or by other members of the force including between senior police officers. Finally, in my view there is nothing in the documents which would provide any assistance to the plaintiff in his case against the defendants.
34 I note that one of the tagged documents originates from the OPI. I accept the evidence of Acting Senior Sergeant Zebrowski that release of these documents would prejudice the ability of Victoria police to properly receive and investigate complaints against police members because it would disclose details of investigative processes used by ESD and the OPI and would inhibit the free and frank exchange of opinions essential to the proper functioning of the investigative and disciplinary process. I consider after balancing the competing public interests that the public interest immunity favours non-production of this document.
35 I have carefully examined the documents in Volume 2 which have been tagged by counsel for the Chief Commissioner. They relate to complaints against the Third Defendant.
36 The first set of tagged documents in Volume 2 concerns a complaint of assault against the Third Defendant. Although the complainant made a statement, the complaint was withdrawn by the complainant by written request. I note that apart from receiving notification that the complaint was withdrawn, the Third Defendant has not seen the remainder of the tagged material. After balancing the competing public interests I consider that the public interest immunity outweighs lies in the non-production of the tagged documents concerning this complaint. The personal circumstances of the complainant are such that the importance of the material is low, and there is a strong public interest in respecting the confidentiality of a complainant who writes to police specifically withdrawing his or her complaint. Where the complainant has made such a specific request, it would in my opinion diminish confidence in the complaints process if the material enters the public arena despite the complainant’s express wishes. There is nothing to suggest that the material has already been made public. I consider that disclosure of some of the documents will reveal investigative methods used by the ESD, methods of intelligence gathering, and may prejudice investigation of complaints by inhibiting frank assessments by investigators and/or by other members of the force including between senior police officers. Finally, in my view there is nothing in the documents which would provide any assistance to the plaintiff in his case against the Third Defendant.
37 The second set of tagged documents in Volume 2 concerns a complaint against the Third Defendant of misuse of handcuffs and excessive force during an arrest. It is clear from the material that when contacted the complainant declined to pursue the complaint because the complainant felt that no action against the member was warranted. I consider after balancing the competing public interests that the public interest lies in the non-production of the tagged documents concerning this complaint. The importance of the material is low, particularly in the light of the complainant’s express unwillingness to make a statement and clear indication that no action was sought in relation to the member. There is a strong public interest in respecting the confidentiality of the complaint process where a complainant declines to make a statement and the complaint is thereby unable to be substantiated. There is nothing to suggest that the material has already been made public. I consider that disclosure of some of the documents will reveal investigative methods used by the ESD, methods of intelligence gathering, and may prejudice investigation of complaints by inhibiting frank assessments by investigators and/or by other members of the force including between senior police officers. Finally, I consider that there is nothing in the documents which provide any assistance to the plaintiff in his case against the Third Defendant.
38 The third set of tagged documents in Volume 2 concerns an allegation of assault against the Third Defendant the outcome of which was determined to be “Unable to Determine” due to conflicting accounts of what occurred. However, it is clear from the tagged documents that those conflicting accounts concern events in which the Third Defendant was not involved and which he did not witness. It is clear from the tagged documents that there were no conflicting accounts concerning the role of the Third Defendant after the primary altercation in which he was not involved and which he did not witness.
39 I consider after balancing the competing public interests that the public interest lies in the non-production of the tagged documents concerning this complaint. There is nothing to suggest that the material has already been made public. I consider that disclosure of some of the documents will reveal investigative methods used by the ESD, methods of intelligence gathering, and may prejudice investigation of complaints by inhibiting frank assessments by investigators and/or by other members of the force including between senior police officers. Finally, I consider that there is nothing in the documents which provide any assistance to the plaintiff in his case against the Third Defendant.
40 I note that three of the tagged documents originate from the OPI. I accept the evidence of Acting Senior Sergeant Zebrowski that release of these documents would prejudice the ability of Victoria Police to properly receive and investigate complaints against police members because it would disclose details of investigative processes used by ESD and the OPI and would inhibit the free and frank exchange of opinions essential to the proper functioning of the investigative and disciplinary process. I consider after balancing the competing public interests that the public interest lies in the non-production of these tagged documents.
Conclusion
41 It follows from the above that the objection of the Chief Commissioner to the subpoenas is upheld. Having upheld the objection of the Chief Commissioner to I will hear from counsel on the question of costs and the appropriate form of orders.
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