Commissioner of Police v Hughes

IPP JA YOUNG JA HANDLEY AJA

COMMISSIONER OF POLICE v HUGHES Judgment 1 IPP JA: I agree with Young JA. 2 YOUNG JA: This is an application for leave to appeal against orders following rulings made in the District Court requiring production of documents under subpoena despite a claim for privilege. The application has been considered in a concurrent hearing with the appeal itself. 3 It is necessary to set out the background to this application before dealing with the issues that arise. 4 A civil action was brought in the District Court by Mr Hughes, a former police officer, against the State of New South Wales. The basic claim is that the plaintiff suffered psychological injury by being exposed to horrific incidents and was not given sufficient protection against psychological damage from such exposure. 5 However, paragraph 8 of the latest edition of the Statement of Claim is as follows: "In or about March 2001 the Plaintiff was "targeted" by the Defendant for an Integrity Test which subjected the Plaintiff to unreasonable stress causing psychological injury due to the negligence of the Defendant."

6 The particulars of negligence with respect to that claim were:

"a) Failing to properly review the Plaintiff's record to ascertain whether he was an appropriate subject for such a test; b) Causing and allowing the "Test" to be drawn out over an extended period of time; c) Failing to promptly advise the Plaintiff of the result of the "Test" and reassure him as to the Commissioner's confidence."

7 The defendant in the District Court is the State of New South Wales because of s 5 of the Crown Proceedings Act 1988. However, Mr Hughes at all material times was employed in the Police Force under the command of the Commissioner of Police. 8 Mr Hughes issued a subpoena duces tecum against the Commissioner which purported to require him to produce:

"1 All documents and records comprising CIS file no P0202215 relating to the investigation of a complaint by [Mr Hughes against four named police officers]; 2. All documents … referred to as Police Internal Affairs documents including … CIS files and C@TSI files relating to any complaint [about Mr Hughes within a certain period]." We were informed that "CIS" denotes Complaints Information System and C@TSI has a similar meaning.

9 Because the Commissioner is not the defendant in the proceedings, technically this is a subpoena addressed to a third party to the litigation. However, we cannot close our eyes to the realities of the situation. 10 The Commissioner, by notice of motion filed 14 March 2008, moved to set aside the subpoena on the grounds that it failed to disclose a legitimate forensic purpose and/or was oppressive: public interest immunity was also claimed. When the subpoena was amended to reduce the period for which documents were sought, the claim of oppression was withdrawn. 11 The motion came on before Judge McLoughlin on a number of occasions between 14 May 2008 and 13 March 2009. 12 Affidavits of Detective Inspector Minehan and Detective Inspector Newton were filed and read before his Honour which referred to a number of documents for which privilege or immunity from production was claimed. 13 On 20 May 2008, the primary judge ruled that there was a forensic purpose in the subpoena and stood over the motion for further work to be done by the parties. 14 It is a little difficult to identify the full reasons for that determination. This is because in his reasons of 20 May 2008 the learned judge merely says that this decision was made for the reason he had discussed with counsel during submissions the previous week. 15 Appellant's counsel before us produced a schedule of references to the transcript which pick up the references to the discussion. Respondent's counsel did not object to this summary. I will return to this matter. 16 After hearing further evidence and submissions of counsel, the primary judge gave what he later called a provisional judgment on other matters on 28 November 2008. He then heard additional submissions on 27 January 2009 and gave his final judgment on 13 March 2009. 17 According to the primary judge's reasons for judgment of 28 November 2008, the documents in respect of which he was to rule consisted of eight folders comprising an exhibit "DPM 1" to Detective Inspector Minehan's affidavit allegedly brought into existence for the purposes of assessing, registering and investigating a complaint against a police officer pursuant to Part 8A of the Police Act 1990. Some of the documents were photocopies of documents brought into existence otherwise than for the purposes of Part 8A investigations, but the copies themselves were brought into existence for that purpose. These copies were called 'second generation documents' by counsel for the appellant. Whilst this is not an exact term, it will suffice as a tag when referring to such documents. 18 There were an additional seven folders marked " DPNN 1" to "DPNN 7" exhibited to Detective Inspector Newton's affidavit of similar nature. 19 The learned primary judge ruled that the documents referred to in the subpoena must be produced to him so that he could consider questions of privilege and immunity. 20 The debate continued on other aspects of the motion. 21 There was a dispute before the primary judge as to whether he had any discretion to permit production even though a document was, technically speaking, privileged. His Honour ruled on 28 November 2008 that he did not have any such discretion. That ruling is not a matter for this appeal. 22 A key question was whether the second generation documents could be the subject of statutory privilege. 23 The term "statutory privilege" is used in these reasons to describe the right given to persons who have been served with subpoenas to decline to produce the documents referred to therein if certain facts exist. I will return to how statutory privilege is alleged to apply in due course. 24 The primary judge ruled in November 2008 that the second generation documents were not brought into existence for the purpose of a Part 8A investigation and were not the subject of statutory privilege. He considered that most of the other documents did come within statutory privilege, but was concerned that these were admixed with other documents. He stood the matter over for further consideration. 25 In his final judgment the judge ruled on whether certain documents, did or did not constitute a "complaint" under s 127 of the Police Act. He ruled that the documents identified as C, H, I, J and K were not documents constituting a complaint. 26 The judge then reviewed his decision about the second generation documents in the light of further submissions. He considered at length the decision of the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501, but distinguished it on the facts. 27 The primary judge ruled that one could not equate the rights of immunity under s 170 of the Police Act with legal professional privilege. 28 The judge ruled that investigator's reports were covered by statutory privilege as was correspondence created during investigations. However, minutes of meetings relating to departmental investigation did not. He ruled that print outs of non-privileged material did not become privileged. 29 As to material in relation to integrity testing, the ruling was that such of the documents that were brought into existence for the purposes of investigation and complaint were privileged, but many the documents involved with integrity testing were not privileged. 30 The judge identified many of the documents noting which side of the privilege line they fell and stood over for further consideration a final list. 31 The formal order of 13 May 2009 was, in essence, that part of the motion be dismissed, but that the Commissioner be excused from producing certain documents (Order 3) and that further consideration of the motion be stayed until after consideration of any appeal against Order 3. 32 On this appeal, the Commissioner challenges three decisions of the primary judge, viz:

1. The ruling that there was a legitimate forensic purpose in the subpoena; 2. The ruling that second generation documents could not be the subject of statutory privilege; 3. The ruling limiting the statutory privilege to cases where there was a formal complaint complying in all respects with s 127 of the Police Act .

33 Of course, there is also the preliminary question as to whether leave to appeal should be granted. 34 The application and appeal were heard on 2 September 2009. Mr I Temby QC with Mr P Singleton and Ms M England appeared for the Commissioner and Mr T Ower appeared for Mr Hughes. The Preliminary Issue - Should leave to appeal be granted?

35 This Court has a great reluctance to allow satellite litigation and review of procedural rulings of judges to hold up the hearing of the merits of the litigation; see eg Ainsworth v Burden [2005] NSWCA 174. 36 Mr Temby endeavoured to persuade us to abrogate that rule of practice by submitting that, unless this court makes authoritative rulings on the proper practice of issuing and answered subpoenas what he considered to be the present unprincipled anarchy in lower courts would continue to the detriment of citizens whose only desire was to keep their own affairs confidential. 37 That plea might have had more effect on me were this really a case which was a proper vehicle as a test case or if the appellant was really a third party completely unassociated with a party to the proceedings. Neither applies in this case. 38 Moreover, the skirmishing over this subpoena which has already gone on for over a year may not yet be concluded as the Commissioner has foreshadowed that, should the production of some documents be required after this appeal is concluded, he may still wish to claim public interest immunity. 39 If there were to be a strong claim for leave to appeal on the present matter, the Court would have expected that all matters would have been addressed before the application was made for leave to appeal. 40 However, the rule of practice set out above is not set in concrete. I would not abrogate it as it is sensible and in line with the aim of disposing of disputes justly, quickly and cheaply (vide Civil Procedure Act 2005, s 56). However, even respecting the general principle, there are good reasons for granting leave to appeal in the instant case. 41 These reasons may be summarised by saying that the delay in mounting the appeal has already been suffered, there are strong reasons for thinking that the learned primary judge made fundamental errors and the court may alleviate hardship on Mr Hughes by ordering the Commissioner to pay the costs of the application and appeal in any event and by requiring the Commissioner to pay the costs of any application in the District Court to agitate the question of public interest immunity. 42 Thus, I would grant leave to appeal on those conditions. First Ground - Was there a legitimate forensic purpose?

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. 49 It is necessary to digress at this point and note the salient provisions of Part 8A of the Police Act. 50 "Complaint" is not defined by the Police Act. However, with certain exemptions, s 122(1) lists a series of matters which constitute complaints that are subject to Part 8A. These include complaints that a police officer has acted unlawfully [s122 (1)(c)] or, has committed conduct of a kind for which reasons should have (but have not) been given even though such conduct was not unlawful [s122 (1)(d)(v)]. 51 Section 126 confers a right on any person to make a complaint about the conduct of a police officer. 52 Section 127 requires complaints to be made in writing but subsection 5 permits other complaints to be accepted so long as they are reduced to writing. 53 The Part makes provision for complaints to be recorded in the complaints information system and for their investigation. 54 Section 169A prohibits the identification of the complainant except with consent or except in certain specified circumstances. 55 Although not referred to in the legislation, it was made clear to us from the bar table that part of the strategy which seeks to preserve the integrity of the police force is for the internal affairs section to conduct "integrity tests". These can take many forms and be instituted for a number of reasons and, perhaps, merely occur at random. An example is the placing of a wallet with money in it where a police officer will come across it and noting whether he or she duly records the finding or pockets the cash. 56 Returning to the first ground of appeal, the Commissioner challenges the ruling that there was a legitimate forensic purpose in the subpoena. The Commissioner submits that the legitimacy of a subpoena must be determined by reference to its own terms and the issues in the relevant proceedings rather than by reference to the subpoenaed documents themselves. 57 The Commissioner puts that the weight of authority supports the proposition that a subpoena procured in civil proceedings will be set aside unless it is demonstrated: (1) that it has a legitimate forensic purpose; and (2) that there are concrete or definite grounds for believing that the documents sought will materially assist the subpoenaing party: see Harvey v NSW [2005] NSWSC 1389. 58 Moreover, the Commissioner submits that when challenged by the person served with the subpoena, the person issuing it must state clearly and precisely what is the legitimate forensic purpose for which the subpoena was issued. 59 This submission is principally based on two cases in the criminal law, Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 (CA) and Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 (Barr J). 60 In Carroll, an accused person issued a subpoena to the Commissioner of Police for the production of the affidavits relied upon for securing orders authorising the police to employ listening devices. The accused challenged the validity of those warrants by filing and serving a summons for a declaration that they were invalid. The summons was referred to the Court of Appeal. 61 Kirby ACJ at 169-170 said that there was need for a legitimate forensic purpose to be disclosed for the issue of a subpoena so that the Court can resist the misuse of subpoenas to permit parties to civil or criminal proceedings to embark upon a "fishing expedition". He thus needed to ask himself whether it was "on the cards" that access to the police affidavits would be of assistance to the issuer's case. The three judges held that this question should be answered negatively. 62 The term "on the cards" derives from the judgment of Gibbs CJ in Alister v The Queen [1984] HCA 85; 154 CLR 404 at 414. 63 Mr Temby relied on part of the judgment of Mahoney AP in Carroll who had said at p 182: "…mere relevance is not enough: thus, it is not enough for the party to show only and without more that the document plainly shows and shows only that his case cannot be made out. It is not enough for the party to say: 'The documents are relevant in the sense that prima facie they establish the case against me: therefore I am entitled to see them and to tender them'."

64 As Beazley JA (with whom James and Kirby JJ agreed) pointed out in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 at [63] that passage has been applied in many subsequent decisions in NSW and Victoria. 65 I cannot see anything in these leading judgments which requires that a court insist that the issuer of a subpoena must precisely identify the forensic purpose of the subpoena to the court. Indeed, it would seem from the judgment of Hunt AJA at 185 that the purpose of the subpoena was announced by the issuer. 66 However, there is some support for Mr Temby's proposition that a more liberal attitude is taken to subpoenas issued by the accused in criminal cases than is taken in civil cases (Kirby ACJ at 170 relying on Brennan J in Alister at 456). 67 Mahoney AP at 181 commented on the contrast existing in the categories of discovery, subpoenas to a party and subpoenas to non-parties. Although this was de rigeur in the 1990s, modern case management has, to a degree, elided many differences and, in particular, subpoenas may now be properly issued, in some cases, with the originating process. However, in the instant case, it is completely artificial to treat the Commissioner as a non-party. 68 In Tastan, the District Court issued a subpoena to this Court requiring production of all documents tendered by the Commissioner of Police for the purpose of obtaining warrants for listening devices. 69 Although the report is not clear, it would seem that the Commissioner of Police issued a summons for a declaration that the issuer had no legitimate forensic purposes and that the subpoenas were an abuse of process. 70 The parties did not raise any of the obvious procedural problems affecting that summons except locus standi which was decided in the plaintiff's favour. 71 Barr AJ said at 504: "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 … . The defendant did not submit that he was not ultimately obliged to demonstrate the existence of such a purpose."

72 Barr AJ stated the authority relied upon for that statement. The principal authority is R v Saleam (1989) 16 NSWLR 14 (CCA) where Hunt J (with whom Carruthers and Grove JJ agreed) said that: "… when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made."

73 Hunt J said something similar in Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 681. 74 In R v Saleam [1999] NSWCCA 86 at [11], Simpson J (with whom Spigelman CJ and Studdert J agreed) said: "Before access is granted … the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case."

75 It must not be overlooked that, in Saleam (of 1989), Hunt J noted that the legitimate forensic purpose might only become apparent after the trial had progressed some little way, see p 18. 76 In my view, none of these passages must be read as requiring the stately saraband of the judge calling for counsel for the person issuing the subpoena to make a formal precise statement of the claimed legitimate forensic purpose in every case. There will be some situations where, because of the case management process, the judge will be able to see clearly what might be the purpose and might consider it inimical to cross examination to make an explicit disclosure of purpose. In other cases, the purpose will be obvious. 77 All that is required is that, if the person subpoenaed challenges the forensic purpose, the onus is on the person issuing the subpoena to demonstrate the legitimate forensic purpose to the judge's satisfaction. 78 That satisfaction is not necessarily the result of an assessment on the balance of probabilities. If an experienced counsel or advocate asserts that it is "on the cards" that the material being subpoenaed may well assist in formulating the cross examination, the judge, who, after all, is most often an experienced trial lawyer, may consider that sufficient. In other cases, the circumstances will dictate a closer scrutiny of the reason advanced for the subpoena. 79 Returning to the instant case, although there may not have been a precise identification of the forensic purpose, in the light of paragraph 8 of the statement of claim, a legitimate purpose was fairly plain. 80 I referred to the document containing the judge's remarks on forensic purpose. This notes that the primary judge said at p 86 of the White Appeal Book (Transcript of 14/5/08, p 9), "Why on the face of it wouldn't they have some forensic - when you look at the issues between the parties as set out in the pleadings why wouldn't they have forensic purpose?" 81 Other comments were made by the judge along the same lines. 82 I am quite satisfied that the judge was correct to rule as he did and did not err in not asking counsel for Mr Hughes to announce a legitimate forensic purpose. 83 What I have said is sufficient to affirm the decision below on this point. However, Mr Temby raised two other matters with which I should deal. 84 In A v Z [2007] NSWSC 899, Brereton J considered the setting aside of a subpoena duces tecum addressed to the Commissioner of Police. 85 Brereton J said at [3] that: "A subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining relevant evidence."

86 His Honour said at [19] that he had to ask himself "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." 87 Brereton J noted that older authorities on discovery and subpoenas such as Air Canada v Secretary of State for Trade [1983] 2 AC 394 had been superseded by changed procedures in modern courts in NSW. 88 We were informed that Brereton J's decision was reversed on appeal by consent without this court considering its correctness. 89 The Commissioner is obviously concerned that the approach taken by Brereton J would open up litigants to obtain a greater number of documents than if the older cases were strictly applied. Doubtless for this reason, he would like to see this Court reject that approach. 90 I do not consider that we should fall in with the request to reject the approach in A v Z. We should not ordinarily seek to reverse a decision which is not subject to appeal, a fortiori when it is unnecessary to do so. Next, I do not read into Brereton J's reasons all the vices attributed to him by Mr Temby that his Honour was saying that "mere relevance was enough". Furthermore, I consider that in the light of revised procedures for discovery and subpoenas adopted in recent years, Brereton J's approach to the question may well be correct. 91 Finally, we were cited the decision of the Court of Criminal Appeal comprised of Beazley JA (with whom James and Kirby JJ agreed) in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65. 92 In that case, an accused person had issued a subpoena to the Commissioner of Police requiring production of documents compiled by the police in accordance with the Law Enforcement (Controlled Operations) Act 1997 and regulations. 93 A magistrate ruled that there was a legitimate forensic purpose for the subpoena and the Attorney-General appealed against that determination. 94 The Court of Criminal Appeal reversed the magistrate's decision. Beazley JA reviewed the authorities and said that the test as laid down by Simpson J in the 1999 Saleam case should continue to apply. 95 I do not see anything in that decision which affects the result in the instant case. Ground 2 - Second generation documents

96 In the course of carrying out an investigation, the Commissioner's officers obtain documents from internal and external sources and copy them physically or electronically and add them to the file. 97 "Document" is defined in the Dictionary to the UCPR as including any copy of a document. 98 Thus, one must consider the status of a copy document in its own right and it is immaterial that the original or another copy of the same writing would not be the subject of statutory privilege. 99 Indeed, the fact that a document was copied and placed in an investigator's file may of itself have significance. 100 In Commissioner of Australian Federal Police v Propend Pty Ltd, the High Court ruled that, where a copy of a document which is not of itself privileged is furnished to a lawyer for the purpose of obtaining legal advice, the copy document is privileged. 101 The learned primary judge considered that because the statutory privilege with which he was concerned was very different from legal professional privilege, the Propend case did not govern the situation. This led him to rule that "second generation" documents were not the subject of statutory privilege. 102 This view was erroneous. First, because of the definition of "document" in the UCPR, the copy or "second generation" document must be considered separately and apart from the original and secondly, the Propend decision is of general application. 103 I, accordingly, would allow the appeal on this ground so that the "second generation" documents should not be produced. Third ground - Complaints

104 The judge took the view that for there to be a valid complaint, there must be compliance with the formal requirements of s 127 of the Police Act. Thus, when he considered that there was no valid complaint under Part 8A, there could be no protection under s 170 of the Police Act. 105 The effect of this ruling was to exclude from the protection of statutory privilege the documents identified as documents C, H, I, J and K in the Complaint File Index which was Annexure C to Detective Inspector Minehan's affidavit and which is reproduced at p 271 of the White Appeal Book. 106 These documents were the subject of confidential tender both before the primary judge and this court. We chose not to look at them as it is only as a last resort that the judge should consider material of which a party or his or her counsel has no knowledge and about which no meaningful submissions can be made. 107 However, the Complaint File Index and the primary judge's remarks at pages 204-5 of the White Appeal Book provide sufficient material to deal with this ground of appeal. 108 Document C deals with some missing bullet resistant vests from a police motor vehicle assigned to Mr Hughes. It is said that this is a complaint within s 122(1)(d)(v) which I have quoted earlier in these reasons. The primary judge rejected the contention it was privileged because he said it did not set out a complaint, it raised questions, though Detective Sergeant Payne assessed the matter as a complaint. 109 Document H was a writing by a Ms King recording an intercepted telephone call which was said to indicate conduct perverting the course of justice. The judge rejected it as there was no written complaint. 110 The primary judge said as to document H that there was no evidence as to the identity of Ms King who made the note. With respect, it was irrelevant who Ms King was. The fact that she recorded that she had listened to an intercepted telephone conversation which gave rise to the possibility of a police officer being involved in conduct perverting the course of justice was sufficient to constitute a complaint. 111 Document I was a document of Detective Senior Constable Granger relating to matters of integrity testing and was claimed to be a matter of unlawful conduct (not being an offence or corrupt conduct) designed to induce someone to make a statement (s 122(1)(c)). 112 Document J was a report from a Ms Niece, who appears to be an employee of the Commissioner, alleging criminal conduct, which the judge rejected as the initial complaint was oral and the circumstances allowing oral complaints in s 127(5) did not exist. 113 Although s 127 as to the form of complaints appears to be mandatory, it is an error merely to focus on the person from whom the information initially derived which led to the investigation. 114 If Sergeant X or even a lay employee of the police department, hears something which he or she considers must be reported to internal affairs, and commits what he or she heard to writing, that is sufficient to be a written complaint which can validly support an investigation into the matter. 115 The judge's errors in this connection vitiates his assessment of these five sets of documents. Conclusion

116 It follows that the appeal must be allowed and that Order 3 made by McLoughlin DCJ on 13 May 2009 must be set aside. 117 Thus I would propose the following orders:

1. Leave to appeal granted on condition: (a) That the Commissioner of Police pay the respondent's costs of the appeal in any event; (b) That should there be a further contest in connection with the subpoena the subject of this appeal on the grounds of public interest immunity, the whole of the reasonable costs of that contest will be borne by the Commissioner of Police.

2. Order that a notice of appeal be filed within seven days.

3. Order that the appeal be allowed 4. Order that Order 3 made by McLoughlin DCJ on 13 May 2009 be set aside. 5. Order that the subpoena issued by the respondent to the appellant on 10 December 2007 as amended on 15 May 2008 be set aside. 6. Order that the Commissioner of Police pay the respondent's costs of the appeal.

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