Marke v Victoria Police

Marke v Victoria Police - [2006] VCAT 1364 - VCAT 2006 case summary — Zoe

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1 Most of Detective Sergeant Lance Marke's 31 year career as a member of the Victoria Police Force has been devoted to crime investigation. He has been stationed at Seymour Police Station since 1987 and he has held the position of officer-in-charge of the Seymour Crime Investigation Unit since 1994. During his career he has received numerous commendations for dedication displayed during investigations and for successful prosecutions.

2 On 3 April 2003, he commenced long service leave with no reason to suspect that events which were about to befall him would cast a shadow over his reputation and standing in his local community.

3 On 29 April 2003, the Ethical Standards Department (ESD) of the Police led by Inspector Christopher Enright and Detective Acting Senior Sergeant Helen Sattler commenced an investigation to establish whether Detective Marke had attempted to pervert the course of justice by hindering a police investigation. The police investigation related to allegations that an Anglican priest, Father Alan Sapsford, had sexually assaulted former altar boys.

4 The ESD investigation was a result of allegations by police officers Detective Senior Constable Matthew Neilson and Senior Constable Tamara Chippindall to the effect that Detective Marke had interfered with the Sapsford investigation.

5 On 7 May 2003, shortly after the ESD investigation commenced, the Australian Broadcasting Commission in its 7:30 Report televised a story in relation to the allegations against Pastor Sapsford in which there were claims of a cover up by the Anglican Church of paedophilia within the church. The programme featured a woman who alleged that Detective Marke had interfered in the criminal investigation of Sapsford. In May 2003, Derryn Hinch on Melbourne's 3AW took up the story as did the Seymour Telegraph on 14 May 2003.

6 Detective Marke has at all times vehemently denied the allegations made by Chippindall and Neilson and in the media, and he claims that the allegations were falsely made with the intention of assassinating his character and reputation.

7 On 10 October 2003, at the completion of the ESD investigation, Sattler found that the allegations against Detective Marke were not substantiated. Detective Marke believed that the finding should have been one of exoneration and, on 13 July 2004, he sought a review of Sattler's findings by ESD. On 26 October 2004, Acting Assistant Commissioner Cornelius of ESD changed the finding to unfounded but declined to make a finding of exoneration. Cornelius refused a request by Detective Marke to commence a formal investigation into the conduct of Chippindall and Neilson.

8 Detective Marke remains unhappy with the findings of ESD. He alleges that Chippindall and Neilson have made misleading or false statements about him and he believes disciplinary or criminal proceedings should be instituted against them. He has had an audience with Deputy Commissioner Nancarrow concerning these matters and he has sought a review by the Office of Police Integrity.

9 He has also made a complaint to the Ombudsman regarding the ESD inquiry, the behaviour of Chippindall and Neilson and other matters, including delays by Police in processing his request for documents. He is dissatisfied with the Ombudsman's findings and he has made further allegations to the Ombudsman which are now being investigated.

10 These proceedings concern a request by Detective Marke under the Freedom of Information Act 1982 (the Act) for access to documents held by Police relating to the ESD investigation. He was granted access to some of the documents. However, other documents were not released or released in part only on the basis that they were exempt under the Act. The documents claimed to be exempt are the subject of the dispute before this Tribunal.

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11 In about August 2002, Neilson and Chippindall who were at that time both stationed at Seymour CIU, began an investigation into allegations that Sapsford had been guilty of gross indecency and indecent assault on former altar boys. In September 2002 Sapsford was interviewed by Police and charged with 20 counts of sexual assault. In March 2003, he died of an unrelated medical condition and the matters against him were formally discharged.

12 In early 2003, Chippindall and Neilson raised concerns with the Office of Public Prosecutions (OPP) that Detective Marke had interfered with the police investigation of Sapsford and they subsequently made the allegations to ESD after being advised to do so by a barrister at the OPP.

13 The ESD is a separate department of Police located in a secure area. It investigates corruption and prosecutes misconduct and criminal offences committed by members of the Police.

14 During the course of its investigation of Detective Marke, ESD investigators spoke to a large number of people including Chippindall and Neilson, other police officers, staff at Seymour Magistrates Court, members of the Seymour Anglican Church community, possible victims of Sapsford and members of the Sapsford family.

15 An independent investigation called Operation Trout Cod was established by Police in about June 2003 at the request of ESD to investigate complaints by parishioners of Christ Church Seymour, including that they had received abusive and threatening calls after they called for action against Sapsford. Some of the documents in dispute relate to that investigation.

16 The ESD investigation was completed by Sattler in September 2003 and she provided a report dated 10 October 2003 of just over 8 pages. Detective Marke has received a copy of her report. The file was forwarded to the Ombudsman for review of the investigation, and to the ESD Discipline Advisory Unit to consider whether any disciplinary breaches had occurred.

17 In December 2003, the OPP recommended that no criminal charges be laid. The ESD Disciplinary Unit formed the view that there was insufficient evidence to support any disciplinary action against Detective Marke for unprofessional conduct or wrongdoing. A minor peripheral issue was identified by the Unit in relation to a lack of communication between members at the Seymour CIU, and a Management Intervention Model (MIM file) was created within ESD and referred to local management for the purpose of a conciliation process. In August 2004, Detective Marke was counselled by Superintendent Rodney Johns, who was superintendent-in-charge of region 4 based at Seymour, in relation to communication and management issues.

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32 Detective Marke gave evidence that the allegations made by Neilson and Chippindall, the ESD inquiry, and the 7:30 Report and other media coverage had had a devastating effect on his health, life and character and his family. He made a number of allegations against Chippindall and Neilson including that they had given false and misleading information to ESD, that they had conspired to pervert the course of justice, that Neilson had given false information to the ABC and to the alleged victims of Sapsford to progress the Sapsford investigation, and that Neilson and Chippindall breached provisions of the Police Regulation Act 1958.

33 Detective Marke said he was dissatisfied with the ESD finding of "not substantiated" because he knew there was no credible evidence which could support any allegations of wrongdoing against him. He said that ESD failed to conduct a thorough and professional investigation or investigate his allegations of misconduct by police officers.

34 He claimed that ESD investigators had played a role in having him named in the 7:30 Report. He expressed a number of concerns in relation to the management issues identified by ESD and he said that when he was counselled by Johns on 17 August 2004 in relation to management issues identified at Seymour CIU, the counselling was based on false information provided by Neilson and Chippindall.

35 Detective Marke expressed concern that Johns had knowledge of the allegations against him in the 7:30 Report before the programme went to air and that he failed to let Detective Marke know in advance about the investigation and the 7:30 Report. Detective Marke said that if he had been informed he would have made himself available for interview immediately as he had done nothing wrong. Detective Marke said that injustices had occurred when he was named in the media as being a suspect for criminal allegations prior to the investigation being completed.

36 Detective Marke criticized the Police for their failure properly to inform the public, and particularly his local community, of the outcome of the ESD inquiry notwithstanding he had prepared a memo for them to release to the public. Detective Marke said there were false allegations in relation to his connection with the Sapsford family, including that he went on a school camp with Sapsford's son-in-law. This misled ESD investigators and another investigation, the Trout Cod Investigation. Detective Marke said that police had refused to reveal the identity of the person providing the false information.

37 He contended that the material in dispute was not confidential. He said that the MIM file (which contains some of the documents for which exemption was claimed) could be read by police administration staff particularly whilst the file was at Seymour Police Station for some three months and this was likely given the nature of the allegations and the publicity surrounding the matter.

38 Detective Marke said he lodged the FOI application with the police in an attempt to search for the truth, and as he was dissatisfied with the lack of answers and any apparent interest from ESD investigators in pursuing people he believed had made false statements. He alleged that the evidence identified many injustices against him. He said that further injustices had occurred in the unacceptable delays in the proceedings caused by the police in relation to the FOI application. He said that he wanted to clear the air about the allegations and investigation.

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55 Detective Marke submitted that police officers who gave truthful information to ESD had nothing to fear from the forces of law and order. Whilst this may be so, they may have something to fear from fellow officers. In an ideal world, police officers are committed to the highest standards, but in reality, as Sattler indicated in her evidence, officers fear that giving information to ESD may impinge on their career development and subject them to harassment, intimidation and ostracism.

56 Detective Marke submitted that an undertaking of confidentiality from ESD investigators "could encourage false statements and allegations from dishonest persons who know their falsities will never be challenged[9]. Whilst I accept this may be the case, Parliament in balancing the competing interests of the public and providers of information found it necessary to include the exemption in the legislation without any requirement that it be truthful or accurate.

57 Detective Marke argued that the required degree of impairment could not be established in this case where Police had released (with personal details deleted) a substantial amount of documents, including Document 170 being the summary of the witness statements.

58 In my view there is a difference between strong suspicions as to the identity of a person and a strong belief as to the exact nature of a statement and the absolute knowledge that possession of the text would give. In the present case what stands between this applicant and the actions he wishes to take to the disadvantage of the officers who made the statements is that he does not have the actual texts. It follows that maintaining the exemption bestows a measure of protection on those who made the statements and a withdrawal of the protection would result in not upholding the exemption.

59 Detective Marke submitted that the ESD's ability to obtain similar information in the future, if the material was released, would not be impaired as officers can be directed under the Police Regulation Act to answer questions related to disciplinary matters. As DP Galvin observed in Re Lapidos and Ombudsman No 2 information voluntarily given may come from an unexpected source and resort to the coercive powers may not result in as full a flow of information as might have been provided without coercion[10]. Further, ESD does not have coercive powers in relation to criminal matters.

60 Detective Marke sought to rely on a statement of an officer who said that in FOI proceedings before this tribunal in 2001 the police had released to him statements by officers given to ESD. Detective Marke argued that such release told against the arguments advanced by Police in this case under s 35 of the FOI Act. In my view it is unsafe to draw any conclusion from that case in the absence of a full understanding of the circumstances in which the material was released and the particular facts of the case.

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61 Document 12 is described in the amended schedule of exempt documents as the investigative notes of Sattler. It is undated. It was prepared by Sattler when she was considering obtaining a search warrant to seize the files of Sapsford's solicitor, Mr John Price. On its face it provides reasons why the warrant was obtained, sets out allegations against Detective Marke, poses a series of questions by Sattler which appear to reveal her thought processes in weighing up the allegations and what might be found in Price's files during the ESD investigation and her observations in relation to Price. Exemption is claimed for the document under sections 30 and 33.

62 Section 30(1) requires first that for a document to be exempt it must be "an internal working document" in that it meets the requirements of s 30(1)(a) and secondly, that its release will be contrary to the public interest under s 30(1)(b).

63 In my view the material falls within s 30(1)(a) in that if disclosed, it would disclose matter in the nature of advice prepared by Sattler for herself to assist her in carrying out her investigation. As Macnamara DP noted in Re Mildenhall and Department of Education[11], a personal aide-memoire whose release would disclose matter in the nature of advice and recommendation falls under s 30(1)(a). I am also satisfied that release would disclose advice for the purposes of the deliberative processes of the police in that the investigative process conducted by ESD is a deliberative process.

64 Some of the material could be categorised as factual in that it records allegations and information received from witnesses. In my view, however, the factual material and the material which falls within s 30(1)(a) are so intertwined that it would be hard to separate them to produce an expurgated document of any meaning[12]. On that basis it is not appropriate that I release the purely factual material.

65 In relation to the public interest, Sattler gave evidence that she regarded the ability of the ESD investigator, his or her superiors and other relevant members to communicate with each other frankly and that this was a critical part of any successful ESD investigation process. She said that if she had known there was a risk that documents that she created in confidence would be accessible, she would have been more circumspect in her record keeping to avoid compromising the integrity of the investigation and prejudicing the overall functions and objective of ESD.

66 I accept her evidence. It is contrary to the public interest to impede investigations of this nature by discouraging careful record keeping and note-taking or indeed by divulging internal written exchanges between officers within the course of an investigation into allegations where such exchanges are important if not crucial to the investigation process[13].

67 The Tribunal must balance public access to documents against the need to protect the deliberative processes of government. In the present case the latter outweighs the former.

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78 Document 39 is a diary and day book entry of Operation Trout Cod investigator Detective Senior Constable Brown. It was the evidence of Detective Senior Constable Bodsworth that Brown's notes recorded a conversation between Bodsworth and a non-police person in the course of the Trout Cod investigation and that Brown took the notes whilst Bodsworth spoke to the person. Exemption is claimed for the material under ss 33 and 35(1)(b).

79 It was Bodsworth's evidence, which I accept, that the person interviewed had an expectation that the information would be used solely to assist the investigation. I am satisfied the material relates to the personal affairs of the person who provided the information and numerous other people to whom he referred. The information is highly personal. Some of the material is related to the police investigation of Sapsford or the ESD investigation. In my view, disclosure would be unreasonable because of the private nature of the information, the fact that the person who provided it would not have expected it to be made public and the high likelihood that the various people referred to would object to the release of such information.

80 Document 40 has been released in part to Detective Marke. It is a summary of information given to Bodsworth and Brown by Chippindall on 5 June 2003. Bodsworth gave evidence that he believed that Chippindall provided the information in the expectation that that it would be used solely to assist the investigation and not be released to the public.

81 The first part of the withheld material (2/3rds down the 1st page) would, if released, reveal the name of a non-police person who gave information to the police regarding Sapsford. The information has been released. I am satisfied that name is exempt under s 33 as if released it would reveal the person who gave information of a highly personal nature and certain views of the person. The names of the officers who interviewed that person do not appear to fall within s 33 because the evidence does not establish that disclosure would be an unreasonable disclosure of those people's personal affairs. Further, it is not clear how the officers' names fall within s 35. Accordingly the names of the officers are not exempt.

82 The name of another non-police person interviewed by police has been withheld in the next paragraph. It also is exempt under s 33 as is the name of an alleged victim of harassing phone calls on the next page. In my view disclosure would be unreasonable because it is unlikely those people would agree to release and release would achieve little in terms of the concerns raised by Marke.

83 On the third page there is a list of complainants known to Chippindall. They appear to be people who gave information to Police during the Sapsford investigation. The material is also exempt under s 33 for reasons just given.

84 The paragraph on the third page commencing with the word "In" and finishing with the word "matters" does not appear to fall within s 35(1)(b) or s 33. It relates to what appears to be a clerical matter and the evidence does not establish it would be unreasonable to disclose the material for the purposes of sections 33 or that the material meets the requirements of section 35.

85 In the next paragraph two sentences have been withheld. The material meets the requirement of s 35(1)(b) in that it is information received in confidence from Chippindall and release would be contrary to the public interest for reasons similar to those given in relation to the earlier documents of this nature.

86 The last paragraph that has been withheld starts with the word "on" and finishes with the word "Division". It relates to a person's personal affairs but the evidence does not establish that it would be unreasonable to disclose the material which appears to be unremarkable in nature.

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87 An issue arose during the course of the hearing as to whether confidentiality was breached by Police when the MIM file was compiled and referred to local management, and whether as a result the police could not maintain its claim for exemption under sections 33 and 35.

88 The evidence establishes that on 30 March 2004 the MIM file was created within ESD and provided to Detective Inspector Westfield of ESD who at that time was the ethics and professional standards officer (EPSO) for Region 4, to implement the management intervention model. Region 4 is the area in which Detective Marke works.

89 It appears that the MIM file contained amongst other things Sattler's summary of witness statements (Document 170) without deletion of personal information, Sattler's report, Detective Marke's statement to ESD, and Documents 8 and 29 being statements by Neilson and Chippindall. The latter two are documents claimed to be exempt by the Police. These were not included in the amended schedule of documents produced for this hearing but as I understand it are representative of document 6.

90 I say this material appears to have been included in the file, as it was on the file when produced to the tribunal and there was no convincing evidence that the material has not been on the file since it was compiled within ESD.

91 The MIM file appears to have been delivered either personally or by internal mail to a number of other officers who were not within ESD. For example, Westfield delivered it to Superintendent Proctor at Knox Police headquarters. Knox was at that time attached to Region 4 and chairperson of the Professional Development Committee (PDC) which oversaw and advised on ESD files.

92 On 3 May 2004, Proctor took the file to a PDC meeting. Two representatives from the Police Association were amongst those who attended. The file was not made available to those present but Proctor gave an overview of the file. There is no suggestion that he revealed any confidential material at that meeting.

93 On 17 June 2004, Proctor handed the file to Johns for the purposes of applying management intervention and resolution. It appears the file was processed by administrative officers and remained at Seymour for several months.

94 On 18 August 2004, Superintendent Cartwright, who was at the time Acting Assistant Commissioner for Region 4, received the file from Johns. He attached certain reports to the file and forwarded it to the regional Ethical Professional Standards Officer. It appears that at some point in time the file may have been seen by Acting Superintendent Hocking.

95 Inspector Feltham gave evidence as to the confidential procedures surrounding the handling of MIM files. He said that security is attached to an MIM file in the same manner as an ESD file.

96 I accept that Detective Marke's MIM file was one of the first of its kind and that handling procedures described by Feltham may have improved. However, in the present case the inclusion in the MIM file of confidential and highly personal information provided by witnesses which has no relevance to management issues is highly regrettable and constitutes a breach of confidence. It is also of concern that the file cover sheet on the MIM file makes no reference to the file being confidential or private and that it was left at Seymour Police station for a considerable time where there may have been people tempted to read its contents.

97 I am convinced however of the correctness of the quest by Police for confidentiality in relation to the exempt material and there is no reason, in my view, to make a bad breach of confidence worse (unless obliged to do so by the FOI Act) by releasing the documents in dispute.

98 Further, the fact that the confidential material was widely circulated ought not alone destroy the confidential character of the material. All police establishments have large quantities of documents which would be regarded as confidential for a variety of reasons. Therefore to have documents circulated from one police location to another where it can be accessed by a number of people falls short of the release to the world at large.

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103 Two major public interest factors upon which Detective Marke relied are to the effect that there is a need to clear the air[16], and that the injustices he has suffered should be rectified.

104 I accept that Detective Marke has suffered greatly as a result of the allegations against him, the ESD investigation and the media reports. I also accept that there can be a strong public interest in righting the injustice done to a single individual[17]. There does not appear to be anything in the documents in dispute however which, if released, would reveal an injustice done to Detective Marke, or which would assist him in redressing a crime, wrong or fraud (as he suggested in his submissions).

105 In terms of clearing the air, he has a fair knowledge of the statements provided to ESD by witnesses given he has received a large number of documents, including the summary of witness statements and Sattler's report setting out the allegations and her findings, and he acknowledges he has been able to clear his name.

106 He has sufficient understanding of the allegations against him and the evidence gathered by ESD to present his case for further investigation, and this is what he has done. Many of the matters raised by him are still under consideration by the Ombudsman and the Office of Police Integrity. They include, as I understand it his allegations against Chippendall and Neilson, the adequacy of the ESD inquiry, the processing of his FOI request and the conduct of the Police case during the hearing. In my view release of the material will not advance the articulation of the issues which Detective Marke has raised.

107 In part Detective Marke's public interest grounds were based on an assumption that the Police and more particularly ESD should be accountable and open to scrutiny in the decision-making process. However, as Macnamara DP observed in Re Birnbauer and Davey v Inner and Eastern Healthcare Network (unreported 1998/08205 24 August 1999 at p 23) if such a submission was accepted "the whole of the rest of the Freedom of Information Act including all the exemptions except those specifically excluded from the operation of s 50(4), namely the Cabinet exemptions and the personal affairs exemptions would become irrelevant. The Freedom of Information Act as a whole represents an attempt to balance competing policies. A primary commitment to disclosure of information generated by public agencies tempered by a right to retain certain (exempt) material controversial with the ultimate gloss of an ability vested in this Tribunal to override most of the exemptions in the public interest".

108 None of these matters constitute a basis for overriding the exemptions claimed for the documents. In particular, I am not satisfied that the public interest in favour of release is so strong as to demand that access be granted.

At a glance

Court

Decision date

Before

Source

Judgment (86 paragraphs)

Marke v Victoria Police (General) [2006] VCAT 1364 (11 July 2006)

Parties

Cases Cited (2)