Attorney General for New South Wales v Dylan CHIDGEY

APPLICANT Mr D Nagle of counsel Walter Madden Jenkins solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr R McIlwaine solicitor Crown Solicitors Office

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Samuel James Becke for review of an order under s 181E of the Police Act 1990

1 In these proceedings, Samuel James Becke has filed an application pursuant to s 181E of the Police Act 1990 ("the Act") for review of an order made by the Commissioner of Police under s 181D(1) of the Act. Mr Becke was dismissed from the New South Wales Police Force for serious misconduct. 2 The applicant's case is that he denies any wrongdoing and, in particular, claims that he did not commit either a sexual assault or an indecent assault upon "H" on the morning of 1 January 2008. 3 On 26 June 2009, the applicant issued a summons for production addressed to the Commissioner of Police. On 22 July 2009, the Commissioner of Police filed a notice of motion seeking an order that the summons for production be set aside, contending that it had no legitimate forensic purpose and was an abuse of process. 4 An alternative ground that the Commissioner of Police should be excused from producing any documents based on a claim for public interest immunity was not pressed. 5 At the hearing of the notice of motion, Mr D Nagle of counsel, who appeared for the applicant, did not press a number of paragraphs of the summons for production. Certain documents were produced by the Commissioner of Police in answer to the summons for production. However, the Commissioner of Police resisted production of: 1. All records held by the NSW Police Force relating to Samuel Becke including but not limited to: c. All records and recommendations of the Commissioner's Advisory Panel, Process Unit of Employee Management Branch, Employee Management Branch, notes of the Commissioner of Police and any draft briefing papers prepared for the purpose of being provided to the Commissioner of Police in relation to the s 181D process involving Becke; d. A copy of C@tsi file P0800012. 3. A copy of the criminal investigation file relating to the alleged sexual assault of "H" by Samuel Becke, including any drafts or other notes as contained within that file. 6. A copy of the files held by the NSWPF relating to the charges laid against Samuel Becke under the Crimes Act (NSW) 1900, including any information held on the COPS, STDS or E@gli databases. 7. A copy of the original Conduct Management Team notification file. 8. Copies of any subsequent versions of any Conduct Management Team file relating to Becke. 9. Any minutes, notes or other documents arising from either Conduct Management Team meetings or from the Internal Review Panel. 6 The applicant correctly accepted that, the issue having been raised, production of the documents would not be required by the Court unless they established that the summons had a legitimate forensic purpose: NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [20], [22]. 7 The applicant, as I have already observed, contends that the issue in dispute is first, whether Mr Becke sexually or indecently assaulted "H" and secondly, did the Commissioner of Police have regard to all of the relevant material when deciding "I am inclined to prefer "H's" version over your own and I therefore consider that you have breached the NSW Police Force Code of Conduct and Ethics ..." 8 Mr Nagle submitted that the Commissioner of Police placed great reliance on the investigator's report found at Tab 1 of the Commissioner's Confidence Submission. The investigator's report was dated 18 February 2008, being some six weeks after the alleged incident in which the investigator found the allegation of sexual assault against Mr Becke had been established. Approximately one year later, criminal proceedings against Mr Becke were withdrawn. The applicant contends that much of the material the subject of the summons came into existence during the 12 month period after the finalisation of the investigator's report and up until the criminal charges were withdrawn. However, the Commissioner of Police formed the view that he had lost confidence in Mr Becke and ordered his removal from the NSW Police Force. 9 Mr R McIlwaine, solicitor, who appeared for the Commissioner of Police, submitted that the test for a legitimate forensic purpose in civil matters is stricter than in criminal matters where the accused is in jeopardy: Attorney General for New South Wales v Dylan CHIDGEY [2008] NSWCCA 65 at [58] - [61]. 10 Mr McIlwaine observed that the New South Wales Court of Appeal has considered the test to be applied for determining legitimate forensic purpose in civil matters in two cases: Carroll v the Attorney-General for New South Wales (1993) 70 ACrimR 162 and NSW Commissioner of Police v Tuxford. In Carroll, Mahoney AP stated at [182]: "... mere relevance is not enough: ... He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: "I wish to see the document to see if it may assist my case." 11 In Tuxford, Brownie AJA, with whom Spigelman CJ and Ipp AJA agreed said at [27]: In the language of Jordan CJ in Small at 575, the opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant. In the language of Lord Wilberforce in Air Canada at 439 there must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition. 12 It followed, so it was submitted by Mr McIlwaine, that the applicant must satisfy the Commission that there are concrete grounds to expect that the documents will assist his case on an issue in the hearing. The issue, it was submitted, must be identified with some precision: Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37. Principles 13 The principles to be applied in the present case were summarised in Travel Compensation Fund v Blair & Ors [2002] NSWSC 1228 by McClellan J (as he then was): "[20] The principles to be applied in the present circumstances are well known. ( The Commissioner for Railways v Small (1938) 38 SR(NSW) at 564). A subpoena may not be used by a party to litigation for the purpose of fishing i.e. "endeavouring not to obtain evidence to support his case, but to discover whether he has a case at all." (p 575). This principle requires careful consideration depending on the circumstances. In particular, a subpoena is less likely to be set aside if the information which it seeks is exclusive to the other party. Newcastle City Council v Kern Land Pty Ltd & Anor, NSWSC, unreported, 9 December 1996, McLelland CJ in Eq, and Schutt v Queenan [2000] NSWCA 341, Mason P para 14.

[21] In NSW Commissioner of Police v Tuxford & Ors , [2002] NSWCA 139, Brownie AJA said: "… it is plain beyond argument that, if documents are produced on subpoena, and objection is taken to their being inspected, inspection should not be permitted unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose. In that context it is said that a party is not entitled to go on a fishing expedition, nor should the court do so: Small at 575; R v Saleam (1989) 16 NSWLR 14 at 17-18; and Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681. See too Air Canada v Secretary for State for Trade [1983] 2 AC 394 at 439 and 453 and Alister v The Queen (1984) 154 CLR 404 at 414.

In Principal Registrar of the Supreme Court v Ali Tastan (1994) 74 A Crim R 498, Barr AJ, as he then was, said: 'It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made." p 504 [22] Later his honour said: "In the language of Jordan CJ in Small at 575, the opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant. In the language of Lord Wilberforce in Air Canada at 439 there must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition."

[23] The party issuing the subpoena must be able to show that it is "on the cards" that the documents will bear on and have relevance to the issues in the case: Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667."

(It appears that the statement attributed to Lord Wilberforce in Air Canada as reported in Tuxford par 22 is incorrect in that his Lordship (p 439) referred to a ground for belief which was "concrete", not "common".) 14 Recently, Backman J in Bradley Eade-Smith v Commissioner of Police, considered a number of authorities which had dealt with applications to set aside summonses for production and notices to produce on the ground of relevance. Her Honour referred to two judgments of Brereton J. Firstly, in Portal Software v Bodsworth [2005] NSWSC 1115, his Honour said: "[20] However, relevance - or more accurately, lack thereof - is now a sufficient ground for setting aside a subpoena. In Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306; 88 ALR 90, Beaumont J approached the setting aside of subpoenas as oppressive on a basis which reveals that absence of apparent relevance is one of two separate bases for doing so: his Honour identified that on an application to set aside a subpoena as oppressive, two questions arose: first, whether the material sought had an apparent relevance to the issues in the principal proceedings - which his Honour called "adjectival" as distinct from "substantive" relevance - and thus the subpoena had a legitimate forensic purpose to that extent; and secondly, whether the subpoena was seriously and unfairly burdensome or prejudicial. Failure to satisfy either requirement resulted in the subpoena being set aside. ...

[24] In White v Tulloch (1995) 127 FLR 105, (1995) 19 Fam LR 696, (1995) FLC ¶92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection". But perhaps the most instructive description is that of Beaumont J in Arnotts , in which his Honour said that the test of adjectival relevance was satisfied if the material had apparent relevance and was established if the documentation called for "could possibly throw light on the issues in the main case". In a slightly different but related context, the test has been put in terms that a subpoena has a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence in a criminal proceeding [ Alister v The Queen (1984) 154 CLR 404, 414 (Gibbs CJ), R v Saleam (1989) 16 NSWLR 14, 18].

[25] Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings. 15 The second judgment referred to by her Honour was A v Z and Another (2007) 212 FLR 255, where Brereton J again considered applications to set aside subpoenas. His Honour examined the various tests formulated in a number of authorities with regard to the relevance of documents to determine whether those documents, or other material, should be the subject of a grant of access. His Honour preferred what was referred to as the "wide test" stated by Moffitt P in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 and by Beaumont J in Trade Practices Commission v Arnotts Limited and Others (1989) 88 ALR 90. His Honour also relied on a decision of Hunter J in Brand v Digi-Tech [2001] NSWSC 425 in which Hunter J, after referring to the passage from Moffitt P in Waind at 385, said: [36] I think it is indisputable that, if the subpoenaed documents are by their description arguably relevant or capable of providing a legitimate basis for cross examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. It is equally clear, in my view, that, if the description of the documents is such as to admit of a finding that the documents are manifestly irrelevant and incapable of touching matters of credit, then the issuing of such a subpoena represents an abuse of process. 16 After referring to the passage from Hunter J in Brand extracted above, Brereton J in A v Z formulated the test in the following way: [19] ... Accordingly, I would approach the question primarily on the basis of asking whether, on the one hand, the documents called for are apparently relevant or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of subpoena, or whether on the other, they are manifestly irrelevant and incapable of touching matters of credit, in which case the subpoena would be an abuse of process. 17 Backman J, after reviewing these authorities, observed at [24]: The above authorities emphasise a number of matters applicable to the present proceedings. For present purposes it is sufficient to mention two. First, documents or materials to which access is sought at this preliminary stage by a party under a summons or notice to produce need only show, or be capable of showing, apparent relevance to an issue in the principal or main proceedings. To put it another way, access to documents and materials which are sought by a party may be granted where those documents or materials, "could possibly throw light on the issues in the main case". Secondly, documents or materials which are sought by a party, and to which access may be granted, must be sufficiently identifiable or of a sufficient description in order to admit of a finding that they are of apparent relevance to an issue in the principal proceeding. 18 I respectfully agree with her Honour's analysis of the authorities and adopt her observations. Police Act 1990 19 This legislation specifically contemplates that when this Commission is undertaking a review of an order under s 181E of the Act, material will not be excluded that may have altered the decision of the Commissioner of Police: see s 181G(2)(iii) of the Act. It was submitted on behalf of the Commissioner of Police that if he had not looked at certain documents, such documents must be irrelevant for the purpose of the s 181E review of an order. This submission, in my view, is misconceived. In Van Huisstede v Commissioner of Police (No 1) (2000) 98 IR 57, the Full Bench at [194] stated: "[194] ... The Commission should, according to the approach in Bigg (No 2) and Oswald (No 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. 20 The Full Bench went on to observe at [206] that the view of the scope of the review to be undertaken by the Commission was supported by the Second Reading Speech of the Minister for Police in relation to the 1997 amendments to the Act (Hansard, Legislative Assembly, 18 June 1997, 10563). 21 More recently, the Full Bench observed in Toshack v Commissioner of Police [2009] NSWIRComm 31 at [48] - [49]: "[48] There is another important consideration in this respect. Whilst the question of integrity has been considered in the context of the requirements of s 181F(3) ( Commissioner of Police v Brennan [2008] NSWIRComm 52), and whilst considerations under that section may impact upon the question as to whether the removal of an officer was harsh, unreasonable or unjust and discretionary matters such as the determination of appropriate relief in a given case ( Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [216] and see Commissioner of Police v Sewell at [15]), it must be steadily borne in mind that there is a distinction between the consideration of a police officer's integrity by the Commissioner under s 181D(1) and general notions of integrity that may be raised more broadly in the context of review proceedings brought under s 181E(1).

[49] The Commissioner's consideration of integrity is undertaken in a particular context, including requirements of the Police Act , standards established by the Commissioner from time to time (subject to the observations above) and the particular factual substratum (including documentary materials and submissions) which underpinned the Commissioner's decision to remove a police officer. That decision and the reasons given for it must be considered firstly, and will require the Commission to consider, inter alia , whether the decision of the Commissioner is sustainable or not in the light of the reasons given by the Commissioner having regard to the provisions of s 181F(1)(a). Other considerations may arise in an appropriate case such as the later conduct of a police officer or matters arising before the removal, which are appropriate to be taken into account in accordance with the principles discussed in Starr v Commissioner of Police [2001] NSWIRComm 226 at [321] to [326]. Additional matters to those considered by the Commissioner may be taken into account in the review to decide whether the removal was harsh, unreasonable or unjust under s 181E (see Little v Commissioner of Police (2002) 112 IR 212 at [75]). But none of this removes the primary obligation of considering the reasons provided by the Commissioner (in the context in which they were given). So much will also ground any consideration of the integrity of the police officer arising in the reasons for removal. Matters arising for consideration under s 181F(3) will be assessed later in the sequence of deliberation and involve broader considerations (which have been much discussed in the authorities)." 22 I propose to apply the principles set out earlier in this decision and to give appropriate weight to the observations of Full Benches in respect of reviews of an order under s 181E of the Act. Consideration 23 The applicant relies upon the contents of the Commissioner's Confidence Submission, together with two statements made by "H" on 10 January 2008 and 17 May 2008. The applicant contends that each of these statements, which were not before the Commissioner of Police, are crucial to an objective assessment of the facts in issue and the applicant's credibility. The applicant raises the forensic purpose of selective use in relation to the documents found in the Commissioner's Confidence Submission, contending that all documents produced for the purpose of the investigation and decision making should be available for use in the applicant's case. 24 Shortly stated, the Commission is required to determine whether the documents, being the subject of the application, meet the threshold test for production. If the documents are deemed to be of relevance to the issues which are said to arise in this case, and the summons is not otherwise oppressive, then the documents should, ordinarily, be produced. 25 In respect of paragraph 1.c. of the summons, the applicant contends that it is clear from the Commissioner's Confidence Submission that there were at least 18 documents of relevance to the investigator's report and only 13 documents were put before the Commissioner of Police. The investigator's report makes reference to DNA material and testing which came back as inconclusive. This material does not appear on the list of documents which were put before the Commissioner of Police. These documents appear to me to be relevant and should be produced. 26 Paragraph 1.d. of the summons seeks a copy of the C@tsi file P0800012. The respondent objects to the production of this file, being a file containing documents relevant to the investigation and relating to Mr Becke. It was submitted by Mr Nagle that this file acts as an administrative file which compiles documents relevant to a complaint against an officer. It is this complaint that then gives rise to the conduct management investigation. The documents contained in the C@tsi file are said to be relevant to the disciplinary process and the removal of the officer. 27 In Eade-Smith v Commissioner of Police, Backman J refused to order production of a C@tsi file in that matter (at [38] - [43]). The reason for her Honour's refusal was that the applicant had not nominated the subject matter to which the C@tsi file might go (at [41]). This is not the position here. The applicant says he did not assault "H" in the manner alleged, or at all. Furthermore, as was said in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at [27]: "... In this respect we adopt the approach of the Full Bench in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37: where serious allegations of misconduct are made against an employee based in whole or part upon source documents said to found those allegations, then it will be essential to notions of procedural fairness that an employee be given access to that material in order to answer any allegation or charge." 28 I note that recently, Sams DP in Steven Probst and Commissioner of Police [2009] NSWIRComm 114 at [25] concluded that a C@tsi file of an officer the subject of a s 174 review of an order of the Commissioner of Police was relevant to the proceedings and should be produced. 29 Mr McIlwaine submitted that it is only the documents produced in the Commissioner's Confidence Submission which are relevant to the finding of misconduct and therefore no other documents bear any legitimate forensic purpose. However, this is not the test. What is required to be determined is whether the documents contained in the file have a legitimate forensic purpose in relation to the incident itself, not the finding made by the Commissioner of Police in relation to the incident. To the extent that I understood Mr McIlwaine to submit that the production of the C@tsi file required the applicant to demonstrate it was something beyond speculation, the applicant raises the prospect that documents in the C@tsi file will show that the investigator failed to have regard to certain matters relating to the contradictory evidence between another officer and "H". In my opinion, the C@tsi file is relevant as it must contain documents relating to the investigator's report and to the investigation and complaint generally. It should be produced. 30 Paragraph 3 of the summons seeks the criminal investigation file relating to the alleged sexual assault of "H" by the applicant. Mr Nagle submitted that this file contained all the material that the Police collated in respect of the investigation. It would seem to me to be relevant both in terms of general principles and also in terms of the legislative scheme that enables a review of the decision of the Commissioner of Police. The material sought in paragraph 6. would fall into a similar category as paragraph 3 and should be produced for the reasons already given. 31 Paragraph 7 of the summons seeks the Conduct Management Team notification file which is said to contain the source documents that were relevant at the beginning of the investigation. This file was referred to in the investigator's report. This file appears relevant in my opinion and should be produced. 32 Paragraph 8 falls into the same category as paragraph 7. The documents sought there should be produced for the reasons already provided in respect of paragraph 3 of the summons. In respect of paragraph 9 this paragraph is bad in law, particularly as to form. It makes no reference to whom the minutes, notes or other documents relate to and it is inappropriate to attempt to read down this paragraph. It is an abuse of process and is struck out. 33 I would add that it is not necessary for a party called upon to sustain the relevance of a summons for production to show that there is likely to be a document in every category called for by the summons for production. There is reason in this case to think that there are documents relating to Mr Becke's dismissal and there is a legitimate forensic purpose for the issue of the summons for production in the terms in which it is expressed. It is important to show that the documents provided to the Commissioner of Police did not undergo a selection process whereby only those documents unfavourable to Mr Becke's case were included in those forwarded to the Commissioner of Police. It is not "fishing" or "speculation" to seek documents that may, when considered in their totality, exculpate the applicant. 34 In my view, the material sought has an "apparent relevance", or "a sufficient apparent connection" to justify production of the documents objected to, with the exception of those in paragraph 9. 35 I order that the Commissioner of Police produce the documents set out in the summons for production dated 26 June 2009, as amended by the applicant and reflected in the summons dated 2 August 2009, with the exception of the material sought in paragraph 9. Access is granted. The respondent's notice of motion filed 22 July 2009 is dismissed.

AMENDMENTS HISTORY: 25/08/2009 - The word "under" inserted in first line. - Paragraph(s) [19]

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