Beckett v The State of New South Wales

The discovered documents and the Motion 17Harrison J ordered that documents in the categories contained in Annexure "A" to his judgment be discovered. Two categories (categories 3 and 47) were said to be relevant to the present claims for privilege by counsel who appeared before me on the present application. Those categories were described as follows: 3. Any and all documents in relation to complaints made by the Plaintiff in respect of: (a) Peter Thomas; (b) Carl Paget; (c) James Henry Morris; including but not limited to the complaints investigated by the Police Service, the Internal Affairs Unit and the NSW Ombudsman. Such documents to include but not be limited to; (a) the complaints (b) any and all correspondence, memoranda, notes, diary entries by any officer or person in relation to the complaints or the investigations into the complaints (c) any and all responses by Peter Thomas (d) witness statements (e) recordings of any kind in relation to the to the complaints or the investigations into the complaints (f) reports, notes, memoranda, minutes of meetings, decisions or other documents evidencing the manner in which the investigations into the complaints were undertaken (g) reports, notes, memoranda, minutes of meetings, decisions or other documents evidencing the manner in which the complaints were resolved or finalized. ... 47. All Police Internal Affairs (including any and all reports made pursuant to s 94A of the Police Act) in respect of; (a) Peter Thomas; (b) Carl Paget; (c) James Henry Morris. 18In its List of Documents discovered in relation to category 3 the Defendant has listed documents numbered 55 to 73 in respect of which no claim for privilege is made. It has listed documents 710 to 943 as documents in respect of which privilege is claimed. That privilege in all cases is based on s 170 Police Act and/or s 59 Police Regulation (Allegations of Misconduct) Act. In two cases (documents 889 and 890) legal professional privilege is claimed also. 19In respect of category 47 documents numbered 637 to 648 are discovered with no claim for privilege. Documents 983 to 2586 are said to be privileged under those statutory provisions with the additional claim of legal professional privilege for a relatively small number of documents within that group. 20In her Notice of Motion filed 31 October 2012 the Plaintiff seeks the following orders: 1. An order that the defendant provide further and better discovery of document number 128 in its list of documents dated 15 September 2011 by providing all unredacted original duty book entries of Detective Sergeant Peter Thomas. 2. The defendant produce for inspection the all documents discovered in its list of documents dated 15 September 2011 consecutively numbered 703 to 2584 with the exception of documents numbered 703, 704, 705, 706, 707, 708, 709, 2574, 2575, 2576, 2577, 2583. 3. The defendant produce for inspection documents consecutively numbered S24 to S35 in its supplementary list of documents dated 21 November 2011.

The legislation 21The Departmental investigations were conducted under the provisions of the Police Regulation (Allegations of Misconduct) Act. Section 59 of that Act relevantly provides: 1. Subject to this section, a document brought into existence for the purposes of this Act is not admissible in evidence in any proceedings other than proceedings (including an inquiry under section 45) with respect to the discipline of the police force before - (a) the Commissioner; or (b) the Tribunal. 2. Subsection (1) does not apply to or in respect of- (a) a document incorporating a complaint; (b) a document published by order of or under the authority of either House, or both Houses, of Parliament; (c) a document published under section 32(3) or 45(5); or (d) a document that a witness is willing to produce. 3. Subsection (1) and (2) do not operate to render inadmissible in evidence in any proceedings any documents that would not have been so admissible if this had not been enacted. 22That Act was repealed and replaced by the Police Act. Clause 25 of Schedule 4 to this Act relevantly provides: 25 Application of provisions relating to complaints (1) Part 8A does not apply to conduct that occurred before the commencement of the former complaints Act. (2) Part 8A extends to conduct that occurred after the commencement of the former complaints Act and before the commencement of Part 8A. (3) Anything duly done before the commencement of that Part under a provision of the former complaints Act is (subject to the regulations under this Schedule) taken to have been duly done under the corresponding provision of that Part. 23The provision corresponding to s 59 of the earlier Act is s 170 of the Police Act. It provides: 170 Certain documents privileged (1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings: (a) that concern the conduct of police officers, and (b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action. (2) Subsection (1) does not apply to or in respect of: (a) a document comprising a complaint, or (b) a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or (c) a document that a witness is willing to produce. (3) Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted. 24For practical purposes there is little difference between s 59 of the former Act and s 170 of the present Act for the present Motion. I have referred hereafter to s 170.The

What documents should be produced? 25In relation to prayer 1 of the Notice of Motion that sought unredacted original duty book entries by Thomas, Senior Counsel for the Plaintiff said that he could not deal with the issue. He said it would be difficult even if I was to see the un-redacted material to know whether it was relevant without having full knowledge of the context. He said that it would be a matter for the trial Judge having heard the relevant evidence to determine if un-redacted copies of the entries should be provided. 26I understood that submission to mean, therefore, that prayer 1 was not pursued. 27The principal matter argued on the hearing of the Motion concerned the statutory privilege to which I have referred. Prayers 2 and 3 in the Motion were concerned with that matter. There was a subsidiary issue relating to client legal privilege concerning the documents enumerated in Prayer 2 of the Motion and some other documents. I shall refer to that issue later in the judgment. 28The Plaintiff submitted that what s 170 did was to provide a privilege from the documents being "admissible in evidence" in the present proceedings whereas it did not provide a privilege from production and inspection by the Plaintiff. Reference was made to Priest v State of New South Wales [2006] NSWSC 1281 at [60]. The Defendant drew attention to the definitions in the Uniform Civil Procedure Rules of a privileged document and privileged information in the Dictionary to the Rules. 29The definition of privileged document is "a document that contains privileged information". The definition of privileged information includes: (h) information: (i) the disclosure of the contents of which, or (ii) the production of which, or (iii) the admission or use of which, in the proceedings would be contrary to any Act (other than the Evidence Act 1995 ) or any Commonwealth Act (other than the Evidence Act 1995 of the Commonwealth), 30The Defendant drew attention to r 21.5 UCPR concerning the documents which were to made available arising from discovery. That rule expressly excepted privileged documents. 31In response, the Plaintiff submitted that the terms of the UCPR could not have the effect of modifying s 170 of the Police Act. 32A similar issue arose for consideration in Commissioner of Police v Hughes [2009] NSWCA 306. That was an appeal from rulings made in the District Court requiring production of documents under subpoena despite a claim for privilege provided by s 170. 33In Hughes Young JA (with whom Ipp JA and Handley AJA agreed) said: [43] Before examining the submissions, it is necessary now to define more precisely what is meant by statutory privilege as it applies to the present case. [44] Section 170(1) of the Police Act is, as far as relevant, as follows: A document brought into existence for the purpose of this Part is not admissible in evidence in any proceedings. [45] The exceptions are irrelevant. "This Part" refers to Part 8A of the Act which is headed "Complaints about conduct of police officers" and comprises ss 121-172. [46] UCPR Pt 1.9(3) permits a person who receives a subpoena to object to producing a document on the ground that the answer would disclose privileged information. Associated rules empower the parties to produce evidence on the question of privilege for the court to consider the documents and make a ruling. [47] The Dictionary to the UCPR defines "privileged information" as including paragraph (h)(iii) "[information] ... the admission or use of which, in the proceedings would be contrary to any Act. ..." [48] Thus, if s 170(1) of the Police Act makes a document inadmissible at the trial, it is the subject of statutory privilege which is an answer to its production on subpoena. 34The Plaintiff submitted that these remarks were obiter and that Young JA did not consider the exceptions in sub-s (2). In relation to the exceptions, the Plaintiff's submissions are difficult to understand. This part of the judgment is not concerned with the exceptions. Rather, it is concerned with the inter-relationship between admissibility (by virtue of s 170) and production for other purposes. Ultimately, the issue in Hughes was whether documents were required to be produced in answer to a subpoena. Section 170 provides, on its face, a privilege only against admissibility. It was necessary, therefore, for the Court to determine if the documents had to be produced in the first place. 35Even if the remarks were obiter I consider that I should follow a unanimous decision of the Court of Appeal. I note that Hall J considered that he was bound by that decision in a similar case involving a subpoena: Griffiths v State of New South Wales (Hall J, 14 September 2010, Unreported). 36To the extent that Priest says otherwise, I must regard it as wrongly decided in the light of Hughes. Similarly, what was said in R v Saleam (1989) 16 NSWLR 14 at 18 no longer has application because of the definitions of privileged information and privileged document in the UCPR: Jean Luc Clavel v John Savage (Rothman J, 16 November 2010, Unreported) at [7]. Accordingly, to the extent that the documents are inadmissible by virtue of either or both of s 59 and s 170 the Defendant cannot be required to produce them whether through discovery or by Notice to Produce or subpoena. 37The Plaintiff next submitted that the documents discovered did not include each of the complaints themselves. Attention was directed, for example, to volume 18 (document 912 ff) on page 76 of the documents. The first document was a copy of an Internal Affairs Branch coversheet for a particular numbered matter. Thereafter the documents were those that might be thought to fall within that file. What was apparent, however, was that the complaint which brought about the creation of the file was not recorded as a document. 38In relation to the complaints themselves the Defendant submitted that if the complaints were not within the complaints file they fell outside the privilege in s 170 but if they were within the complaints files they were subject to that privilege. The distinction was said to arise because of the principle established in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. 39The principle established by Propend Finance was that even where the original of a document may not have been privileged a copy might be the subject of privilege because that copy was produced for the purpose of being provided to a lawyer for legal advice. This principle has been held to extend to the privilege referred to in s 170: Hughes at [96] to [103]. 40However, what the Defendant appeared to be submitting in the present case was that, by some analogy that is not clear, a complaint (which is not otherwise the subject of privilege under s 170) acquires that privilege by being placed on a file which itself was brought into existence for the purposes of Part 8A of the Police Act 1990. What seems to have been suggested at one point during oral submissions by the Defendant was that once part of the file the complaint ceased to have a separate existence. If that was the submission it is undermined by the fact the Defendant in its List of Documents has treated each document in the files as a separate document. 41In my opinion the only relevance of Propend Finance is that if a copy of the complaint is made and put on the file that copy will be privileged: Hughes at [96] and [102]. However, that says nothing about the original complaint: Hughes at [98]. The mere placing of the complaint or a copy of the complaint into a file that was brought into existence for the purposes of Pt 8A of the Police Act does not alter the fact that the original complaint, wherever it is found, does not have the privilege by the express words of sub-s (2)(a). 42It would not appear that documents numbered 55 to 73 comprise all of the original complaints that gave rise to the creation of the various files that commence at document 912. The original complaints must be discovered and produced. 43The Plaintiff then submitted that documents such as transcripts of hearings and judgments of the District Court Judge presiding over the hearing of the complaints were public documents and could not be caught by s 170. 44Although it would seem anomalous that such documents are privileged by virtue of s 170, on the face of it such documents would have been brought into existence for the purpose of Part 8A. The express exception in sub-s (2)(b) for a document published by Parliament suggests that it was intended that court documents that fall within sub-s (1) are to be privileged from production: expressio unius est exclusio alterius. As far as judgments are concerned s 91 Evidence Act 1995 may mean that material in them is inadmissible in any event. 45The Defendant appeared to accept that the statutory privilege in respect of these documents could be overcome by issuing subpoenas to relevant courts and/or the Court Reporting Branch. 46The Plaintiff also relied on s 170(2)(c) concerning documents that a witness is willing to produce. The Plaintiff submitted that the word "witness" could not be construed as being a reference to the Commissioner of Police simply because he had the custody and possession of the files. Rather the "witness" would be a reference to the person who made the statement that constituted the document brought into existence for the purposes of Part 8A of the Act. The Defendant submitted that the Commissioner was the witness. 47In Jean Luc Clavel a similar situation arose as in the present case although that case concerned production by reason of a subpoena. Rothman J said: [13] The purpose of s 170 of the Act is plainly to protect from use in a court (other than specified tribunals and for specified and related purposes) those documents that are brought into existence for the purpose of a complaint against a Police Officer. While ever such a document retains that status (i.e. it may have or acquire another purpose) it may not be admitted into evidence. The Commissioner, unless she or he is a witness, does not even have the capacity to waive that protection. 48Whilst I accept that the last sentence concerning the Commissioner was made in passing it provides support for the view that the witness referred to in s 170(2)(c) is the person who made the statement or document in respect of which privilege is claimed and not the Commissioner simply because he is the Defendant or the recipient of a subpoena. In the present case he is neither. The only relevance of the Commissioner of Police in the present matter arises from the suggestion that he (on behalf of the State of New South Wales) has possession and custody of the complaint files. 49In my opinion, and adopting a purposive approach to the legislation, a reference to a witness in s 170 must be a reference to the person who made the statement or created the document in respect of which privilege is claimed. The section is likely to have been intended to provide some protection for people making complaints or giving evidence in support of complainants. That purpose would not be advanced if it was the Commissioner who could decide to give consent to the use of some other person's document. Nor could the Commissioner (as Rothman J noted in Clavel at [13]) waive the privilege. 50It would be for the person asserting the exception to the privilege established by s 170(1) to demonstrate that any relevant witness is willing to produce an otherwise privileged document. I do not consider that anything said in Re Southland Coal Pty Ltd (Recs and Mgrs apptd) (in Liq) [2006] NSWSC 899; (2006) 203 FLR 1 at [14] is inconsistent with this. Austin J said there: (c) Onus - The party claiming privilege bears the onus of establishing the basis of the claim and the party seeking production does not bear the onus of excluding privilege (Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at 337; ASIC v Rich [2004] NSWSC 1089 at [2]; In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 543 at [24]). The party claiming privilege must establish the facts from which the court can determine that the privilege is capable of being asserted (National Crime Authority v S (1991) 100 ALR 151 at 159). The facts are to be proved on the balance of probabilities (Evidence Act, s 142). 51In the present case the Defendant has demonstrated that it has the privilege by virtue of s 170(1). Sub-s (2) provides exceptions to that privilege. In my opinion the onus is on the party asserting an exception because, ordinarily in civil cases, a party is not required to disprove a negative. 52In relation to the claim for client legal privilege the Plaintiff did not take issue with the claim for privilege for the documents enumerated in Prayer 2 of the Motion. However, a similar claim for privilege was made for a large number of other documents in the discovered list. Those documents are identified in an affidavit of Jeffrey Davis, an inspector of police who has worked in Professional Standards since July 2002. Mr Davis has, in respect of each document in respect of which a claim for client legal privilege has been made, set out the purpose of the preparation of the document. On the face of his affidavit all of the documents were prepared for the purpose of either obtaining or providing legal advice. 53Mr Blackett of Senior Counsel for the Plaintiff accepted that he had not cross-examined Mr Davis concerning those documents, and he conceded that, at least at the present stage, he was not in a position to go behind the claim for privilege. Certainly, apart from what Mr Davis says in his affidavit, the description of a number of the documents where such privilege was claimed on the face of it strongly suggests that the claim is properly made.

Conclusion 54The Plaintiff succeeds only in demonstrating that the original complaints associated with the files discovered in relation to categories 3 and 47 should be discovered and produced. The Plaintiff has only been partly successful. In my opinion, there should be no order for costs on the Motion. 55I make the following orders:

1. The Defendant is to provide further discovery of, and to produce for inspection, the original complaints in relation to the files discovered for the purposes of categories 3 and 47 in the categories for discovery ordered by Harrison J on 27 June 2011.
2. Otherwise, dismiss the Plaintiff's Notice of Motion filed 31 October 2012.
3. No order as to costs of the Motion to the intent that the parties bear their own costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2013