Victorian Civil and Administrative Tribunal|2008-10-10

McDermott v Victoria Police (General) [2008] VCAT 2183 (10 October 2008)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Freedom of Information Act 1982, application for access to Police Ethical Standards files, public interest override.

1.Within 28 days the respondent is to release to the applicant the following documents -

Document 32 except for the last two sentences under the heading "Comment";
In relation to documents under the heading "Document 61" the following:

- The ten statements made by police officers (not civilians);

- The transcript of the D24 call with the items about unrelated events deleted from the rear of the sheet; and

This application had its genesis in an application for access to documents made on 12 September 2007. The request was framed by the applicant's solicitor as follows:

The Office of Police Integrity (OPI) and Ethical Standards Department investigations have now been completed and I have received the OPI's decision. In the circumstances it would be appreciated if you would let me have copies of the Police report including but not limited to all statements other than that of my client, diary notes, log book entries and all other documentary evidence of the investigation and including details of the investigating Police Officers pursuant to the provision of the Freedom of Information Act 1982 as amended.

The request was not dealt with within the prescribed time and on 22 November 2007 the applicant sought review of the deemed decision. The respondent, having conducted a search for documents, identified two Ethical Standards Division files comprising:

In its actual decision made on 12 December the respondent advised the applicant that it had identified 380 pages of documents falling within the scope of the request. In relation to file ESD3, it decided to release 38 pages in full, 19 pages in part, and to deny access to 248 pages. In relation to ESD C2, 8 pages were released in full, 11 pages in part and access was denied to the remaining 56 pages.

When the matter came on for directions on 25 January 2008, the Tribunal ordered that the parties were to select a sample of the documents from the respondent's schedule of documents being not more than 10 documents representing each exemption claimed and each class of document.

On 7 March 2008 the respondent's legal advisers forwarded to the Tribunal a list of eleven (11) documents to be the subject of the sample. Despite what was put to me from the bar table during the hearing the Tribunal has no reason to believe that this list was not prepared and agreed to by both parties.

On 30 June 2008 by facsimile the respondent's solicitors indicated to the Tribunal that the applicant had requested inspection of the ESD files by their counsel subject to the usual undertaking. No such order was made by the Tribunal presumably because arrangements were concluded between the

parties although the Tribunal noted the terms of the undertaking proposed for signature by counsel, such undertaking being to both the Tribunal and the respondent not to disclose any information to any unauthorised person. Inspection occurred on 22 July 2008 and following inspection the applicant's solicitor filed with the Tribunal what was described as a Final Request for Documents seeking 32 documents encompassing some 101 pages. There was some tension during the hearing emanating from the filing of this document as it seemed to give rise to a suggestion that the undertaking had been breached. First it was prepared by the applicant's solicitor (whom the Tribunal understands was not a signatory to the undertaking) and second because the description of the documents sought contained personal information not previously disclosed and information the subject of, as yet, untested exemptions.

In any event the Tribunal was informed at the start of the hearing that the sample had now been reduced to six documents comprising some seventy pages and associated representative documents.

The Tribunal heard from the applicant and received evidence both oral and viva voce from Detective Sergeant Stephen McQuinn. DS McQuinn is currently employed in the Ethical Standards Department of Victoria Police and has been in that role for the past 3 years.

The ESD files arose out of a complaint made by the applicant that he had been assaulted by police at Hampton beach on 11 February 2006. His complaint was referred by the Office of Police Integrity ("OPI") to the Ethical Standards Department ("ESD") and was investigated by Det Sgt McQuinn.

I found it useful in considering this application to sketch out the framework in which complaints against police officers are considered. The Ethical Standards Department of Victoria Police is the major recipient of complaints; it was established in September 1996; it is headed by an assistant commissioner who reports directly to the chief commissioner. Oversight has traditionally been provided by the Office of the Ombudsman. In 2004 legislative changes occurred. The position of deputy ombudsman (police complaints) was abolished and Act No. 32 of 2004 introduced the new position of police ombudsman. At the same time amendments to the Police Regulation Act 1958 and the Whistleblowers Protection Act 2001 broadened the powers of the ombudsman to undertake investigations into police conduct to include search warrants, requiring persons to provide information and demanding answers from witnesses. Act No. 63 of 2004 established the new Office of Police Integrity; those establishment sections were incorporated into the Police Regulation Act and implemented the government decision that the person holding the position of Victorian Ombudsman should also be appointed as the Director, Police Integrity. Relevantly the objects of the Director are set out in section 102BA of the Police Regulation Act as follows:

(a) to ensure that the highest ethical and professional standards are maintained in the force; and

(b) to ensure that police corruption and serious misconduct is detected, investigated and prevented;

The six documents the subject of sample are described as follows:

Class 1 - report and documents produced by the respondent in relation to the ESD investigation (the investigation)

3. Document 58 representing 39, 45, 46, 56, 57, 59, 60

Class 5 - Correspondence in relation to the Investigation

Document 61 Section 33(1) and in respect of all 13 witness

Document 31 Sections 30(1), 33(1) and 86TA of the Police Regulation Act

Before commencing with a study of the documents themselves it is perhaps useful to consider generally the exemption claimed pursuant to section 35(1)(b). That section provides as follows:

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to and agency or a Minister, and-

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or Minister to obtain similar information in the future.

Whatever may be the general rule (if indeed there is one) about information communicated to officers of ESD who are charged with the investigation of allegations against police officers, this case presents some unique departure from the norm. OPI, in its oversight role, has chosen to release parts of statements that might normally be considered exempt and has imparted information garnered from the investigation itself as part of its oversight responsibility. The result is that the contents of some of the documents which would normally be regarded as exempt under FOI legislation have been released by the OPI either by way of quoting excerpts from the statements or by summarising information contained in the documents.

DS McQuinn told the Tribunal that he had the carriage of the investigation into the events that occurred on the Hampton foreshore following the reallocation of the file on 21 August 2006; the reallocation followed the transfer of the officer formerly charged with the task. On 6 November 2006 he submitted a report about the investigation concluding that there was insufficient evidence to support criminal charges against any of the officers involved. The file eventually found its way to OPI on 14 February 2007 for review. OPI responded by requesting further information and after consultation it was decided that a brief of evidence should be prepared against the officer against whom the allegations were made. This brief was forwarded up the chain of command to Assistant Commissioner Cornelius who, on 5 July 2007, declined to authorize the brief.

DS McQuinn told the Tribunal that complaints made to ESD were received and held in confidence and that the sample documents contained evidence received in confidence from members of the force as well as from other sources. He stated that is was his experience that persons who provided information to ESD investigators did so upon an express or implied undertaking that the information provided by them would remain confidential unless criminal charges were laid or disciplinary action taken. He expressed the view that if members of the force and the public thought that ESD was not able to maintain confidentiality, then they would not provide the necessary information and would be hesitant to express themselves freely. In my view there may be different views about this depending on who has provided the information. Certainly members of the public would be surprised to learn their complaints were not to be treated as confidential and it would be detrimenal to the public good were members of the public to be dissuaded from reporting matters designed to ensure an orderly society on the basis that they might be exposed to vilification or personal danger for just reporting wrongdoing.

I turn now to the documents. Document 32 is described as an issue cover sheet. Its author is Det Sgt McQuinn. The exemptions claimed relate to personal information and information obtained in confidence. Insofar as the personal affairs exemption is concerned, the personal information contained in the document consists of information that identifies particular individuals. At least two of the persons actually named have filed with the Tribunal correspondence advising his or her desire to have his or her name withheld citing personal safety issues. Section 33(1) states that "a document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)"; subsection (9) states that "information relating to the personal affairs of any person**"** includes information that "identifies any person or discloses their address or location or from which any person's identity, address or location can reasonably be determined." The question here is whether disclosure of the identifying words would be unreasonable. Much of the content of the memorandum is a statement of facts known to the applicant or to his lawyers. It certainly has nothing that could remotely be described as information obtained in confidence given the particular circumstances of this case.

The exemption in relation to section 35(1)(b) is not made out. In relation to the personal affairs exemption, in my view the last two sentences of the first paragraph under the heading "Comment" should not be released, disclosing as it does particulars from which a person's identity can be determined. In my view the release of such particulars in this instance would be unreasonable. Subject to that deletion, the document should be released. There are two representative documents (documents 41 and 49) which purport to fall within the same class as document 32 and in normal circumstances their release would follow the decision concerning document 32. Unfortunately, a perusal of the documents in question reveals that, at first glance, they might give rise to an exemption pursuant to section 30(1), an exemption that was claimed in the initial section 49 statement, but which did not survive the sampling process. I heard no evidence about these two documents and given the difficulties that raises, and given the contents of them, I am unable to decide that these two documents should be released as falling within the representative criteria.

Document 50 is described as "Recommendations re report (3 pages)" dated 6 November 2006. Exemption is claimed pursuant to sections 30(1), 31(1)(a), 33(1) and 35(1)(b). It is not even remotely clear to me how the exemption pursuant to section 31(1)(a) is put but in any event the document is clearly an internal working document. As such it contains a mixture of fact (or rather, the writer's interpretation of facts), opinion and recommendation. It is obvious on the face of the document that it arises in the course of the deliberative processes of the agency. It emanates from an investigative officer who prepared a briefing note to an officer in the Ethical Standards Department. Again, the question is whether release of this internal working document would be contrary to the public interest. The Tribunal does not know whether the totality of the recommendations was eventually acted upon but in any event, an abridged version of parts of the memorandum is to be found in the 11-page letter from Neil MacDonald to Pana Dokos dated 2 August 2007. It seems that letter represents the concluded view of the relevant senior officer. The Tribunal sees no public interest in releasing the contents of document 50 which contains opinions and recommendation made in the investigative process and in no way representing any concluded view or concluded recommendation. To release would create an unnecessary atmosphere of speculation in relation to matters which did not come to fruition and which were in any event dealt with by the oversight process.

The next document falling for consideration is document 58, described in the section 49 statement as "Memorandum recommendation for brief of evidence (5 Pages)". The document is in fact the one that recommends non-authorization of a brief of evidence and was written by DS McQuinn. Exemption is claimed pursuant to sections 30(1) and 33(1). The document is dated 3 June 2007 and is clearly an internal working document. It contains a mix of fact, opinion, advice and recommendation and it quite obviously involves the deliberative processes of ESD. Such is the mixture that deletion of exempt material as contemplated by section 25 would be impossible or would render the document meaningless. Would release be contrary to public interest? The document deals with the investigation progress, a summary of evidence and details of findings and recommendations in relation to various allegations contained in the brief that in the long run was not authorized. Some parts of the document were summarised in the letter from Detective Acting Inspector Tapai dated 23 January 2008 addressed to the applicant and some parts were summarised in the letter from OPI to the applicant's solicitor on 22 August 2007. The document contains an analysis and discussion of the evidence along with a series of recommendations. It is that very analysis that in my view should not to be disclosed following a decision taken at high level that prosecutions should not be initiated. Had the prosecutions been authorized the contents of the brief would have been in the public arena and the evidence heard and challenged in the normal way. But that is not the case here. It is not so much the identity of the various characters that is to be protected by non-disclosure here - it is the discussion, opinion, analysis and recommendations that if disclosed, might give rise to unnecessary speculation and discussion. In Marke v Victoria Police [2006] VCAT 1346 Senior Member Preuss considered whether to release details of investigations conducted by ESD, in particular an officer's investigative notes. In declining to release the document she stated -

It is contrary to the public interest to impede investigations of this nature [that is, investigations into police misconduct] by discouraging careful record keeping and note-taking or indeed by divulging internal written exchanges between officers within the course of the investigation into allegations where such exchanges are important if not crucial to the investigative process. 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.

Similar issues are present here and if anything, the balancing process is weighed down further by the oversight role played by OPI and by the fact that some of the content has been, in one form or another, communicated to the applicant. The exemption is made out. I have not considered the applicability of the other exemptions claimed although it is clear the document contains information that identifies a significant number of people.

Next is a bundle of documents of some 56 pages under Tab 4. They are found under the heading of "Document 61". The first three pages constitute an internal report form for which exemption is claimed pursuant to section 33(1). The balance of the documents consist of statements made by various police officers and others and the transcripts of D24 calls. In relation to each of the statements, exemptions are claimed pursuant to section 33(1) and 35(1)(b).

The internal report form entitled "Use of Force"is dated 14 February 2006; the contents are not remarkable and are known to the applicant. It is not in contention that force was used and the identity of the parties is also known. It is entirely reasonable that the document be released. It should be noted that there is no evidence before the Tribunal in relation to the alterations made by hand but in my view nothing turns on that omission.

The statements under Tab 4 are a more contentious matter. In relation to nine of the total of thirteen statements taken by officers of ESD, nine of the makers of the statements have contacted the Tribunal with a request that their personal details not be released. The reasons behind the individual requests are varied, some fear for their personal safety, some fear for the safety of their families, some are involved in covert activities and fear exposure and several state that because of the nature of their work, they have taken steps to keep their home addresses free from public scrutiny. In relation to the civilian witnesses I accept that there are good reasons for their identities to be protected and that release of the personal information would be unreasonable in the circumstances. In relation to the police statements I am not satisfied that their identities should be protected for reasons that follow the consideration of the exemption pursuant to section 35(1)(b).

In general terms I accept the evidence of DS McQuinn that confidentiality attaches to interviews by ESD by virtue of the nature of the enquiry and that were it perceived that statements would be made public other than in eventual prosecutions, there might be a reluctance in the future to be completely frank and open. This argument is more poignant in the case of enquiries into police behaviour than for instance, the case of a public servant giving unpopular policy advice. On the other side of the argument of course is the fact that it is the duty of serving officers to be frank and circumspect on all occasions and to assist in enquiries of this nature. Certainly in the case of civilian individuals I accept that were they to be identified as complainants, there might be an opportunity for unfortunate repercussions and they might be less willing in the future to report unlawful events. Indeed that is the thrust of the section 53A letters received by the Tribunal.

In this case, oversight was provided by OPI and it chose to quote selected portions from three of the statements and quote from others in its correspondence.

As I mentioned earlier, on 22 August 2007 the Office of Police Integrity wrote an eleven page letter to the solicitor for the applicant informing her of the outcome of the ESD investigation and the outcome of his review of the investigation. It was a lengthy letter which quoted paragraphs from three of the statements and summarised parts of the evidence of others. The applicant gave evidence to the Tribunal that he had never seen this letter before but it is difficult to assume from his evidence that his instructing solicitor kept this information to herself. Perhaps it was communicated to the applicant's father but in any event nothing in particular turns on whether or not he has seen the letter.

On 23 January 2008 ESD sent a fifteen page letter to the applicant summarising the result of its investigation and setting out an evaluation of the evidence. That evaluation identified not only seven officers, but summarised their evidence and drew conclusions from the various versions of the evidence. In the circumstances where identities are already known and where the detail of their evidence is also known, there is little point in maintaining objections to disclosure of the documents in their complete form. Each of the statements of police officers in the sample under Tab 4 of the exempt document is to be released but the exemption is made out in relation to the statements made by civilians. Also in this bundle of documents is a transcribed record of a call to police made by a civilian and that document's status is upheld as exempt pursuant to section 33(1). The remaining document is a transcript of the task given by D24 to Brighton 311 in relation to the complaint of wilful damage with an event chronology on the back of the sheet. Insofar as the transcript of the task is concerned, the document is clearly not exempt and should be released. The event chronology on the rear of the sheet should be edited before release so as to exclude complaints about unrelated events.

Document 31 (found under Tab 5 of the sample documents) is a letter dated 16 March 2007 from OPI to ESD. Exemption is claimed pursuant to section 30(1) and 33(1) of the Act and section 86TA of the Police Regulation Act 1958. For the document to be exempt from the operation of freedom of information legislation, it must be in the possession of "a relevant person or body" as that term is defined in 86TA(2) of the Police Regulation Act. The Ethical Standards branch of Victoria Police is not such a person or body and there is no mandate to read anything further into the precise words of the section. The document is however an internal working document and is one that has been exchanged in the course of the deliberative process. The document is a product of the initial review by OPI in relation to the ESD investigation. It contains a mixture of fact, opinion, request for further evidence and advice. Some of the views expressed in the letter are preliminary in nature and may or may not have been eventually borne out following further investigation. In my view, release of this document would be contrary to the public interest for a variety of reasons. First the views are not conclusive, the temporal framework of the letter is only mid-investigation and in any event the eventual brief was not authorized and did not proceed. Release might give rise to unnecessary speculation and debate and I view the preliminary nature of the observations contained in the letter as akin to a draft document which would not be released because it did not express a concluded position. I find the document to be exempt pursuant to section 30(1) and in those circumstances it is not necessary for me to consider the personal affairs exemption.

The final document is number 29 under Tab 6 and is a letter from OPI to Victoria Police dated 24 February 2006. Exemption is claimed pursuant to 86TA of the Police Regulation Act. For the reasons set out in the preceding paragraph the exemption cannot be sustained. The document is not in the possession of a relevant person or body. It is in the possession of Victoria Police and should be released.

Counsel for the applicant has urged on the Tribunal that it should exercise the discretion found in section 50(4) of the Act - the public interest over-ride. He has many reasons for this submission and I will do my best to do justice to them but noting that the override does not apply to documents found to be exempt pursuant to section 33. Indeed there are only a few documents that would attract the attention of the override. The first of these is document 50 which was found to be exempt although section 33(1) was not considered by me. Had it been, some names might have been omitted under the personal affairs exemption. The second is document 58, next relates to the civilian statements found under the heading document 61 and the remaining document is document 31.

Return to the applicant's submissions, if his written contentions, the argument is put thus:

.....there is a recognisable public interest in the documents being released to the applicant. One of the predominant public interests applied by the Tribunal to invoke the public interest override is the interest in the purity of public administration. In other words there will be a strong interest in favour of disclosure on public interest grounds if the documents in question reveal some illegality, impropriety, sharp practice or wrongdoing.

It is a serious allegation of illegality and wrongdoing on the part of employees of the respondent that form the whole reason for the applicant's FOI request and ensuing litigation.

In his reply to counsel for the respondent, counsel for the applicant also submitted that the public interest override should be invoked because the process of sampling was unfair, the Charter of Human Rights had not been observed, the process was one-sided and his client was hampered in his case by being placed at a severe forensic disadvantage by his inability to have all the file available for the benefit of cross-examination of the police witnesses.

In considering the effect of section 50(4)and the submissions made by the applicant's counsel it is essential to understand the difference between the stringent test to be applied under that section and the test applicable to, say, section 30(1)(b) or section 35(1)(b).

In Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63 the Appeal Division of the Supreme Court observed that the formation of an opinion under s.50(4) might involve resolution of conflicting public interests. On the one hand, there is a public interest against access inherent in the reason for the document being exempt and, on the other hand the public interest favouring access. The Court ( Kay, Fullagar and Ormiston JJ) said that this necessitated a balancing process and for the override to operate, the factors favouring access must of necessity outweigh those against access. At p.74 they went on to say that -

There are many areas of national and community activities which may be the subject of the public interest. The statute does not contain any definition of the public interest. Nevertheless, used in the context of this statute it does not mean that which gratifies curiosity or merely provides information or amusement. Similarly it is necessary to distinguish between "what is in the public interest and what is of interest to know". On the other hand, "one feature and one facet of the public's interest is that justice should always be done and should be seen to be done. It is this feature of the public interest, namely the appearance of justice having been done which is inherent in the proper administration of justice.

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individuals or individuals.

In Secretary to Department of Premier and Cabinet v Hulls (1999) the Court of Appeal made a number of observations about the nature of the public interest override. Those observations were contained in the judgment of Phillips JA, with whom Brooking and Batt JJA agreed. He dealt with the proper construction of the section 50(4) as follows:

The override cannot be invoked unless the particular documents is found to be exempt;

The override cannot be invoked simply because VCAT holds the opinion that it is in the public interest that the exempt document be released; rather, the question is whether the public interest requires - that is "demands" or "necessitates" - the release of that document;

The question is a question of fact for VCAT to decide;

The question may be answered in the affirmative only if the considerations of the public interest are so strong as to override those factors that confer exempt status on the document in the first place;

How strong the public interest considerations must be to prevail in a particular case depends upon the nature and strength of the factors that confer exempt status on the document in question; and

The agency bears the onus of proving that the override should not be invoked.

Since the applicant's case was heard in the Tribunal, the High Court has delivered its judgment in Osland v Secretary to the Department of Justice [2008] HCA 37. The history of that matter concerned an application for pardon brought by Mrs Osland, who had been found guilty of murdering her husband and was serving a sentence of 14.5 years with a non-parole period of 9.5 years. Acting upon advice supplied to him by eminent counsel the Attorney-General recommended to the Premier that the petition be denied. Mrs Osland subsequently sought access to a variety of relevant documents pursuant to the Freedom of Information Act. These documents included memoranda of advice from departmental officials and from counsel.The matter was initially heard by Morris J in his then capacity as president of this Tribunal. His Honour granted access to certain documents, exercising the discretion contained in section 50(4).

The matter was appealed to the Court of Appeal. See Secretary to the Department of Justice v Osland [2007] VSCA 96. Although the focus of the case in the Court of Appeal was on the question of whether legal professional privilege had been waived, their Honours considered the operation of the override section generally. A helpful summary is set out Kyrou & Pizer's Victorian Administrative Law at p.641 as follows:

The operation of the override depends upon the particular circumstances of the case, and "abstract policy considerations" - such as "the desirability of greater transparency in decision-making by the executive" are irrelevant: at [94] per Maxwell P, at [114] per Ashley JA;

The power to grant access to an exempt document is exercisable only if VCAT concludes that the public interest requires that access be granted. This is a "stringent test" - the "case for access must, in effect be irresistible": at [92] per Maxwell P, at [113] per Ashley JA. Bongiorno AJA observed at [122] that the word "required' connotes "obligation", "necessity" or "compulsion" and stated at [123] that the VCAT must be able to express itself in terms that convey that "it had no practical alternative but to allow access" and that the VCAT must be of the opinion that "unless access was granted the public interest would suffer or be diminished in some way".

In no sense did the Court of Appeal diminish or in any way erode the test formerly set out in Hulls - on the contrary, if anything it strengthened it by the introduction of "stringency", "irresistibility" and "compulsion".

After consideration by the High Court the matter was remitted for further consideration involving an inspection of the subject documents. The Court, apart from noting there are "obvious difficulties in giving the phrase "public interest" as it appears in s 50(4) a fixed and precise content", did not in any way diminish the findings of the Court of Appeal in relation to its interpretation of the section. Rather it also focussed on the question of waiver and in particular formed the view that the Court of Appeal, in exercising its powers, should have looked at the documents in question to ascertain whether there were material differences between the various advices that might give rise to a need for the contents to be revealed.

What is clear is that at the present moment, the law in relation to the exercise of the discretion in s 50(4) is settled; the Tribunal must be persuaded that the public interest demands, or compels, or necessitates the release of the documents and that the Tribunal must feel it has no practical alternative but to release them in order to appease or satisfy the public interest.

There is no evidence before the Tribunal that would present such a picture. The applicant in his evidence proffered none; he told the Tribunal his intention was to give the document to his lawyer so could advise him of his rights. That is a private interest. I infer from the nature of the proceedings and the way in which they were conducted that the applicant is seeking advice about the possibility of bringing some action for damages against the police arising out of the incident that occurred on the Hampton foreshore on 11 February 2006 and indeed, there is nothing remarkable about that, but it is not a matter of public interest..

Counsel for the applicant made much of the failure of the respondent to adhere to time limits and to the possibility that there had been departure by the police from their training objectives. It was his submission that police hold a special position of trust in the community and when there is a departure from their timelines and objectives, the public has a real interest and that release would stimulate that interest. This strikes me as the type of "abstract policy consideration" referred to by Maxwell P in the Osland case and in the light of the legislative oversight process, such an abstraction is not sufficient to elevate the case to one necessitating release in the public interest.

In counsel's reply he referred in passing to the obligations imposed by the Charter of Human Rights but this was not a matter articulated during the running of the hearing. Certainly it was referred to, again in passing, in a preliminary argument about the subpoena issued by the Tribunal at the request of the applicant and was dealt with in the preliminary ruling.

In relation to his claims that the sampling process was unfair and that his client was at a forensic disadvantage, I can add little. The parties were both represented, the sampling process was agreed between the parties and the Tribunal took no part. It is true that cases under this legislation create some difficulties for an applicant in cross-examination particularly where counsel has viewed the documents and wishes to question a witness about the contents of particular documents but this is usually managed successfully by skilful counsel who are mindful of the nature of the legislation and on rare occasions by the tribunal closing the hearing. The greater part of this hearing was conducted in closed session.

Insofar as the respondent bears the onus of proving that the override should not be invoked, I am persuaded that the respondent has satisfied that onus. This has been achieved by the very process provided by, and instigated by the respondent in conformity with legislation creating oversight personnel who are specifically charged with duties to investigate and deal with complaints about police conduct. This process has produced a number of informative and frank letters from the OPI and Police Ethical Standards to the applicant's advisers and has treated the applicant's complaints with tact and considerable frankness as indeed they are obliged to do. The override is not invoked.

The result if that within 28 days the following documents are to be released by the respondent to the applicant:
- Document 32 except for the last two sentences under the heading "Comment";
- In relation to documents under the heading "Document 61" the following:

- The ten statements made by police officers (not civilians);

- The transcript of the D24 call with the items about unrelated events deleted from the rear of the sheet; and

Information Act 1982

Police Regulation Act 1958

Whistleblowers Protection Act 2001

McDermott v Victoria Police

At a glance

Court

Decision date

Source

Judgment (81 paragraphs)

McDermott v Victoria Police (General) [2008] VCAT 2183 (10 October 2008)

Parties

Legislation Cited (3)